R. v. Pinchak, 2010 ABQB 747

Court of Queen ’ s Bench of Alberta Citation: R. v. Pinchak, 2010 ABQB 747 Date: 20101126 Docket: 080749609S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Aaron Joseph Pinchak Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A. Hughes _______________________________________________________ Appeal from the Conviction by The Honourable Judge G.S. Dunnigan Dated the 9 th day of February, 2010 ( 2010 ABPC 44 , Docket: 080749609P1) I. Introduction

[ 1 ] Aaron Joseph Pinchak, (the “Appellant”) was convicted of driving “over 80” contrary to s. 253 (

b) of the Criminal Code of Canada . The Appellant appeals his conviction on a number of grounds, arising both from the initial breath demand and the conduct of the trial itself. II. Relevant Facts [ 2 ] The Appellant was stopped at a Checkstop on June 12, 2008. After speaking with the Appellant, Cst. Stefaniuk made a demand for a roadside breath sample. The Appellant complied, and the Approved Screening Device displayed a “fail”.

The officer formed the opinion the Appellant's ability to operate a motor vehicle was impaired by alcohol and arrested the Appellant for impaired driving. [ 3 ] After the arrest, the officer asked the Appellant if he wished to call a lawyer. The Appellant replied he did. The Trial Judge found the officer then read the Appellant the formal waiver of counsel instead of the breath demand. The Appellant did not say anything in reply to the reading of the waiver. The officer walked the Appellant into the Checkstop bus and placed him in a phone booth to contact a lawyer.

After the Appellant exercised his right to counsel, the officer read the breath demand to the Appellant. [ 4 ] The Appellant provided two breath samples, both of which were above 80 milligrams of alcohol per 100 millilitres of blood. [ 5 ] The trial commenced on March 26, 2009 and all the evidence was heard in a voir dire . The Court then heard argument respecting 1) the admissibility of the Certificate of Analysis - in particular, whether the breath demand was made “as soon as practicable” pursuant to s. 254(3) of the Criminal Code and, 2) whether there was a breach of the Appellant’s ss. 8 and 10(

b) rights under the Canadian Charter of Rights and Freedoms . At the conclusion of the argument, both Crown and Defence advised they would file additional written materials. [ 6 ] At some point, September 4, 2009 was set for the Trial Judge to make his ruling on the voir dire . On that date, the Trial Judge stated: What I propose to do, counsel, is this. The decision’s not complete ... But I’m going to read elements of it that will assist you in where my thinking is. I'm reserving unto myself my right to change it.

It's not going to change in its import or its impact or in the final result, but it hopefully will become way more eloquent than this... [ 7 ] The Trial Judge then gave his decision; the following findings are relevant to this appeal:

a) The demand was not made forthwith or as soon as practicable as required by s. 254(3) of the Criminal Code ; thus “... the demand is an illegal one...” (A.B. 59, l.30);

b) The Crown could not rely on the presumption in s. 258(1) (

c) of the Criminal Code ; and

c) The subsequent taking of breath samples constituted an illegal search and seizure contrary to s. 8 of the Charter ; and

d) The accused’s s. 10(

b) Charter rights were breached because the accused had not been read the breath demand when he

exercised his right to counsel. [ 8 ] The Trial Judge then said: So the last element to consider (INDISCERNIBLE) argument is whether I exclude the certificate of analysis, given the revised framework put forth by R. v. Grant in rejecting Stillman and ... (A.B. 60, l. 22-24). [ 9 ] The trial was adjourned for counsel’s argument on s. 24(2) of the Charter . [ 10 ] A series of letters then passed between both counsel and the Trial Judge from September 10, 2009 to November 20, 2009.

Of particular importance is the September 10, 2009 letter where the Trial Judge wrote to both counsel, saying: Further to my oral partial reasons delivered September 4, I wanted to clear up a misstatement I made orally based upon my preliminary notation. I am continuing to review R. v. Rilling , which appears to remain good law. This would make my oral observation regarding any Crown inability to rely upon the presumption in 254(3) to be incorrect. As I said, the decision remains in a state of flux. I do reiterate, however, that I am finding that there were breaches of Mr. Pinchak’s

Section 8 and 10(

b) rights. This can be addressed further when we reconvene to argue the Section 24(2) application in the face of R. v. Grant. [ 11 ] By letter dated September 16, 2009, the Crown wrote to the Trial Judge and Defence advising: Please be advised that I am not clear from your oral reasons what the precise breach findings were and thus I am awaiting receipt of the transcripts.

Perhaps the absence of the Court addressing Rilling on September 4, 2009 added to my confusion, though if agreeable, I would like to review the Court’s analysis relative to the findings as this is critical to assessing the 24(2) issue under the Grant test. [ 12 ] On November 16, the Crown sent a second letter to the Trial Judge and Defence stating: I have re-reviewed the transcripts of proceedings in this matter; the arguments of counsel and your preliminary decision of September 4 th , 2009, and your letter of September 10 th , 2009.

I’m hoping your Honour can clarify some points from your September 4 th decision so that I may give proper consideration to the issue of 24(2). Should the court (or Defence Counsel) suggest these questions be addressed in open court as opposed to by way of correspondence, I’m open to such direction. [ 13 ] On December 2, 2009, the Trial Judge heard the oral argument of counsel on s. 24(2) of the Charter . Prior to this date, both counsel had filed written argument. During argument, the Trial Judge asked Defence: Okay. If – and I’m going to ask you a last question before I call Mr. Simenik to respond to all that.

If I find that the effect of Rilling and – and the subsequent cases dealing with Rilling is that the presumption is not impugned, does that make the

section 10(

b) issue with respect to – in other words, if I find that the certificate is now in, it – that then the presumptions persist and the Crown can rely on the presumptions? Is that simply the end of the matter and the

section 10(

b) issue is moot?

[ 14 ] Defence responded: ... and this Court has already found this – was not given an opportunity to fully retain and instruct counsel, because he was not aware at the time that the police were making the breath demand. And that argument has already been fully fleshed out by Mr. Simenik and myself previously. ... And the Court has already made a determination on that . (A.B. 72, l.15-23) (Emphasis added). [ 15 ] Soon after the Crown began his submissions, the Crown said: ... I think that ... that there were, just simply from my perspective, some confusion. ...

Your Honour, just with respect to the 24(2) issue, I – I’m in a very delicate position here arguing this – this position that I’m arguing, because – and again, I hope you’ll be mindful of – of where I’m coming from. The – the position that Your Honour has taken is that the – effectively, from what I’ve – I’ve read and – and, again, subject to, I guess, you’re retooling the wording, that the officer effectively – that the jeopardy was significant enough to cause or require the officer to re-Charter the accused. And as a result of him not doing that, that creates the 10(

b) breach. (A.B. 75, l. 3-30) [ 16 ] The Crown then began to re-argue some of the s. 10(

b) issue, as well as make his submissions respecting s. 24(2) of the Charter , and the Rilling issue - that being whether the Crown could rely on the evidentiary presumption found in the Code even though the demand was not made “as soon as is practicable”. During the Crown’s submission, the Trial Judge said as follows: Yeah. And I’ll have to look at it, and I’ll look at whether I’m foreclosed based on my decision – decision to try to give you a partial decision orally. (A.B. 86, l.24-26) [ 17 ] Later, the Court said: All right.

Let me – let me – if I can then summarize, you’re saying to me then, first of all, there was no Charter breach with respect to 10(b), there being no further – no obligation to further caution or further allow additional legal advice. Even if there was a breach, it’s a – a minor breach and it should not fall on the basis of a R. v. Grant

interpretation of section 24(2). If – if I allow – so on that basis, if then the – the certificate becomes evidence or is – or is left in evidence and the presumption – the presumption then argument then has to be considered with respect to that, and that Rilling and what has transpired since Rilling , Dwernychuk and as summarized by Charette and (INDISCERNIBLE), is full answer to that. (A.B. 93, l. 16 - 26) The Crown then continued with his argument respecting s. 24(2) of the Charter . [ 18 ] Defence made some reply argument but did not deal with the s. 10(

b) issue. At no time was Defence asked to re-argue the s. 10(

b) breach. [ 19 ] On February 9, 2010, the Trial Judge delivered his written reasons. He stated: I provided counsel with preliminary oral reasons with a view to focussing Crown and Defence argument under s.24(2). In those preliminary oral reasons, I indicated that the failure to re- Charter and re- Caution Mr. Pinchak constituted a breach of his s.10(

b) rights. I did so without engaging in a detailed analysis of the decisions in R. v. Schmautz , ( supra ) and R. v. Johnson , ( supra ). Upon further reflection, and with the benefit of further argument from counsel , I am of the view that my preliminary oral indication that

Mr. Pinchak's s.10(

b) rights were breached by the officer's failure to repeat the informational and implementational process was incorrect. (Emphasis added.) As this Court is not functus until such time as it passes sentence, I am able to correct the error in those preliminary reasons. My analysis follows. The Trial Judge found there was no violation of the Appellant’s s. 10(

b) rights under the Charter and that the Crown could rely on the presumption found in s. 258 of the Criminal Code . III. Grounds of Appeal [ 20 ] The Appellant appealed on the following issues: 1. Was the Trial Judge functus officio relative to the issue of breach of the Appellant’s s. 10(

b) Charter rights, erring in law when he reversed himself? 2. Was the Trial Judge functus officio relative to the issue of whether the Crown was entitled to rely upon the presumption in s. 258 of the Criminal Code , erring in law when he reversed himself? 3. Did the Trial Judge err in law by permitting the Crown to rely upon the presumptions contained in s. 254(3) of the Criminal Code of Canada in circumstances where the demand was not made “as soon as practicable”, or give an unreasonable verdict on this issue? 4.

Did the Trial Judge commit either an error of law or a palpable and overriding error or both in his analysis of s. 24(2) of the Charter by failing to disabuse his mind of concerns relative to his initial determination of s. 10(b) ? [ 21 ] In light of my findings on issues 1 and 2, it will not be necessary to consider issues 3 and 4. IV. Analysis A. Standard of Review [ 22 ] Correctness is the standard of review for the question of whether a judicial officer is functus officio : IMS Health Canada Ltd. v. Alberta (Information & Privacy Commissioner) , 2005 ABCA 325 , 376 A.R. 336. B.

Was the Trial Judge Functus Officio After Making His Rulings on September 4, 2009?

[23] The Appellant submits a trial judge may only change or revisit a verdict where there has been a slip, or to correct the record toreflect the manifest intention of the court. Thus, the Appellant submits the doctrine of functus officio must apply to rulings made in thecourse of a trial, otherwise parties could continually submit new arguments on issues that had been considered and trials would continuead infinitem. [24] The Respondent submits the doctrine of functus officio is not engaged until there is a final judgment and sentencing iscomplete. [25] Chandler v.

Alberta Association of Architects, (SCC), [1989] 2 S.C.R. 848 described the application of thefunctus officio principle. Sopinka J., for the majority, stated at 860: The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St.Nazaire Co. ... The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to twoexceptions: 1. where there had been a slip in drawing it up, and, 2. where there was an error in expressing the manifest intention of the court. ... [26] Doucet-Boudreau v.

Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 further dealt with the questionwhen the doctrine of functus officio is engaged. One of the issues before the Court was whether a trial judge was functus officio aftermaking his order declaring the rights of the parties, or whether he continued to have the jurisdiction to require one of the parties to reportto him. The majority held that the principle of functus officio did not apply because the Judge had not sought to vary a final order, statingat paras. 77-79: A closer examination of the doctrine is helpful.

The Oxford Companion to Law (1980), at p. 508, provides the following definition: Functus officio (having performed his function). Used of an agent who has performed his task and exhausted his authority and of anarbitrator or judge to whom further resort is incompetent, his function being exhausted. But how can we know when a judge’s function is exhausted? Sopinka J., writing for the majority in Chandler v.

Alberta Association ofArchitects, (SCC), [1989] 2 S.C.R. 848, at p. 860, described the purpose and origin of the doctrine in the followingwords: The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St.Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellatedivision. It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see alsoReekie v.

Messervey, (SCC), [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if a court could continually hearapplications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launchan appeal. Applying that aspect of the functus doctrine to s. 23(1), we face the question of whether the ordering of progress reportsdenied the respondents a stable basis from which to appeal. [27] In R. v.

Brady (1998), 1998 ABCA 7 , 209 A.R. 321 (C.A.) the Court said as follows regarding the principle offunctus officio in the context of sentencing at para. 96: Just as in a civil case, the judge who has pronounced sentence does not become functus officio until the formal judgment is drawn up andentered. In a criminal case that seems to refer to endorsing the Information or the Indictment as required by s. 570 of the Code. Until

then, the sentencing judge can correct errors, or even change the sentence if shown that he or she overlooked relevant facts. Fullysupporting all those statements, and citing earlier authorities, is R. v. McCormack (1996) (BC CA), 84 B.C.A.C. 299(C.A.). [28] In R. v. Lawrence, 2004 ABCA 13, 346 A.R. 186, the Appellant sought to re-open his appeal after the Court had issued aMemorandum of Judgment, but had not yet filed a formal judgment.

The Court allowed the application finding that the Court was notfunctus officio because no formal judgment has been entered. [29] Romaine J. noted that the principle of functus officio does not apply to rulings made in the course of trial in R. v. Mohammed,2006 ABQB 42, 390 A.R. 45 stating at paras. 19-20: The functions of a trial judge may not be divided up and made functus officio independently of one another. That is, trial judges do notbecome functus officio in their power to convict or acquit while retaining the jurisdiction to sentence.

Rather, there is only one officiumbefore trial judges, which is ‘to carry the case before them to a conclusion’: S. v. Manchester City Recorder, [1969] 3 All E.R. 1230 at1233 (H.L.). The trial judge becomes functus officio once the case has been finally disposed of: R. v. Conley (1979), 1979 ALTASCAD 129 ,47 C.C.C. (2d) 359 (Alta. C.A.). Until that time, the trial judge is entitled to reconsider or vary his or her judgment: R. v. Roberts (A.W.)(2004), 202 B.C.A.C. 169 at para. 7, 2004 BCCA 346. [30] The case of R. v. Hodgson, 2009 ABPC 165 is not dissimilar to this case.

During the trial, the trial judge made a Charterruling; after the ruling, he was reminded he had not heard the Crown’s arguments relating to s. 24(2) of the Charter. The Trial Judge wascontent to rescind his ruling but the Crown submitted he was funtus officio and therefore, unable to hear further submissions. The trialjudge said at paras. 5-6: The Crown submitted that I am functus officio, and therefore I cannot now hear the submissions on the s. 24(2) application. With respect,I disagree. In Halsbury's Laws of England, Fourth Edition by Lord Hailsham of St.

Marylebone (Butterworths, London, 1979), inVolume 29, paragraph 390, the doctrine of functus officio is explained as follows: The justices are functi officio where they have discharged all their judicial functions in a case. Thus, in criminal proceedings they maynot, save in certain specified circumstances, reopen the case after sentencing the accused or after committing him to the Crown Court forsentence. The doctrine of functus officio applies only after the judge has made his or her final adjudication in a case. The doctrine does not applypiece meal to each individual ruling which might be made in a case.

The doctrine applies to final adjudications, not rulings made alongthe way to that adjudication. [31] The case law clearly provides that the doctrine of functus officio is engaged only after a final judgment has been rendered.Here, the rulings made by the Trial Judge on September 4, 2009, regarding both the presumption in s. 258(1)(

c) of the Criminal Codeand the Charter breaches were rulings made in the course of arriving at the final decision and I conclude the Trial Judge was not functusofficio when he gave his ruling that day. Therefore, he did not err in law by reversing himself, either as regards the Crown’s ability torely on the s. 258(1)(

c) presumption, or whether the Appellant had established a breach of his Charter rights. C. Did the Trial Judge Give Defence Counsel Adequate Opportunity to Address the Judge’s Reconsideration of s. 10(

b) of theCharter? [32] Briefly stated, the Appellant submits the Trial Judge should have advised the parties he was re-considering his ruling on s.10(

b) of the Charter and allowed both the opportunity to reply to the issue. The Respondent submits the case law does not require a TrialJudge to obtain further argument if he or she changes his or her mind on an issue on which counsel have previously made submissions.

[33] In R. v. Jahn (1982), 1982 ABCA 97 , 35 A.R. 583 (C.A.), the Court acknowledged the importance of allowing bothparties the opportunity to make submissions. There, the trial court had dismissed a bylaw offence without giving the Crown theopportunity to make submissions regarding the issue. Haddad J.A. for the unanimous Court of Appeal ordered a new trial. He stated therule at para. 23 as follows: The general rule I derive from the authorities I have read is that a court is not at liberty to pronounce judgment until counsel have beenafforded the opportunity to present argument.

This stems from the fundamental principle that a litigant ought not to be deprived of hisright to have his case fully heard. [34] In R. v. Al-Fartossy, 2007 ABCA 427, 425 A.R. 336, the Court of Appeal reiterated the importance of allowing both sides tofully present their submissions. In that case, one of the key components of the trial judge’s decision was her finding it was unreasonablefor tactical team officers to enter the residence of the Accused wearing masks.

However, neither party had argued this issue before her.The Court of Appeal ordered a new trial, the majority stating at paras. 24-25: The fundamental issue relates to trial fairness. In this sense, it requires that a full and fair opportunity be given to both parties to lead andtest relevant evidence on a Charter application and to make final submissions based on the evidence and the issues, which in turnprovides the court with the ability to weigh and rule on that evidence: R. v.

Dwernychuk (1992), 1992 ABCA 316 , 135 A.R. 31at paras.12-13, 77 C.C.C. (3d) 385 (C.A.), leave to appeal to S.C.C. refused: [1993] 2 S.C.R. vii. These are the basic requirements ofnatural justice. Here the parties addressed what were considered to be the relevant issues in both their evidence and submissions. The trial judge raised aseparate ground that could not reasonably have been anticipated by either party based on this factual record.

While it may be that the trialjudge was correct in her conclusion, it should only have been reached on a full record with the benefit of thoughtful submissions from theparties. Failure to provide the parties opportunity to present full submissions is, by itself, an error in law. In the words of this court inFraser v. Fraser (1994), 1994 ABCA 275 , 157 A.R. 98 at para 10: “A fundamental procedural error such as the failure toafford counsel an opportunity to present argument is fatal to the proceedings and must result in a new trial.” [35] The Ontario case of R. v.

Hunter (1980), (ON CA), 58 C.C.C. (2d) 190 (O.N.C.A.) speaks to similarcircumstances. In that case, the issue was the admissibility of a conversation between the accused and police. The trial judge spoke withboth counsel before the commencement of the voir dire. Defence indicated the evidence he intended to present; the judge told Defencehe need not call his evidence as the judge was inclined to exclude the conversation. After the voir dire, the judge admitted theconversation. When Defence applied to re-open the voir dire, the judge ruled he was functus officio.

The Ontario Court of Appeal heldthat the trial judge erred in finding himself functus and further, that the accused was denied the right to make full answer and defence. [36] In my view, the procedure here was fundamentally unfair. The Trial Judge clearly stated in his oral findings on September 4,2009, as well as in his letter of September 10, 2009, that he had found a s. 10(

b) Charter breach. Accordingly, when the Trial Judgeallowed the Crown to re-argue the issue on December 2, 2009, it was incumbent on the Trial Judge to clearly draw the attention ofDefence to the fact the issue was re-opened and to provide him with an equal opportunity to re-argue the matter. [37] As noted in Al-Fartossy and Hunter, where a fundamental procedural error has occurred, the party disadvantaged by the errorneed not show that, but for the error, the decision would have been different. V.

Conclusion [38] I find that the Trial Judge was not functus officio when he changed his rulings made in the course of trial and before deliveringhis final judgment. However, the Trial Judge erred in allowing the Crown to re-argue an issue on which he had clearly ruled, withoutensuring Defence was aware that the issue had been re-opened. As a result, the Appellant was deprived of the opportunity to fully arguehis case. I order a new trial.

Heard on the 22 nd day of September, 2010. Dated at the City of Calgary, Alberta this 26 th day of November, 2010. E.A. Hughes J.C.Q.B.A. Appearances: David G. Chow for the Appellant Kyra Kondro for the Crown