HER MAJESTY THE QUEEN — v. —, 2015 ONCJ 755

ONTARIO COURT OF JUSTICE CITATION R. v. Lang , 2015 ONCJ 755 DATE: December 17, 2015 COURT FILE No.: Central East Region (Oshawa) BETWEEN: HER MAJESTY THE QUEEN — AND — BRIAN LANG Before Justice F. Javed Heard on November 13, 2015 Reasons on Pre-Trial Application released on December 17, 2015 K. Saliwonchyk ...................................................................................... counsel for the Crown A. Little ......................................................................... counsel for the defendant Brian Lang F. Javed J.: Introduction [ 1 ] The defendant Brian Lang is charged with Over 80 mgs. contrary to s.253(1) (

b) of the Criminal Code . His trial is scheduled to commence before me on January 11, 2016. [ 2 ] On March 26, 2015, Mr. Little, on behalf of the Applicant, filed a Notice of Application in Form 1 of the Rules of Criminal Proceedings (“the Rules”), alleging breaches of Mr. Lang’s rights under the Charter of Rights and Freedoms (“ Charter ”). He advanced a breach of s.7 , 8 , 9 , 10(

a) and 10(

b) of the Charter. By way of relief he seeks to exclude all evidence obtained from the Applicant, including his breath samples as well as any alleged statements, utterances, actions and observations, following his detention and arrest pursuant to s.24(2) of the Charter . Alternatively, he seeks a remedy under s.24(1) of the Charter namely that the Crown not be permitted to rely on the presumption of identity in s.258(1) of the Criminal Code . [ 3 ] On October 13, 2015, Mr. Saliwonchyk on behalf of the Crown, responded in Form 1 and sought two orders: (1) a

summary dismissal of the s.8 argument on the basis that the Notice discloses no Charter breach and/or (2) if the application is not dismissed, particulars of the alleged s.7 and s.8 breaches on the basis that they did not specify the complaint. [ 4 ] The Crown does not take any issue with the particularity of the alleged s.9 , s.10 and s.10(

b) Charter breaches.

[5] On November 25, 2015, the parties appeared before me as the application had been filed by the Crown in advance of the trial.On that date, Mr. Lang was not present but was represented by Mr. Little. I canvassed with both parties the issue of my jurisdiction toaddress the pre-trial application in the absence of Mr. Lang. Satisfied that I could deal with the matter prior to Mr. Lang’s arraignment aspart of my case management functions, I asked the parties their position on Mr.

Lang’s absence and if any issues arose under s.650 of theCriminal Code which provides that an accused shall be present during the whole of his trial. Neither party objected to me hearing thematter in Mr. Lang’s absence as “the trial” had not commenced and thus he need not be present. Mr. Little assured me he had specificinstructions from his client on the pre-trial issue. [6] Mr.

Little opposes the application and takes the position that he need not particularize the alleged s.8 breach as a seizure of hisclient’s breath demand was a warrantless seizure for s.8 purposes and thus the onus shifts to the Crown. [7] For reasons that I will expand upon below, I agree with the defence position. I am of the view that the s.8 allegation on thisrecord, need not be particularized. The Factual Background [8] There is nothing remarkable in the anticipated factual record that was outlined by both parties in their written materials. In short,a police officer observed Mr.

Lang’s vehicle leaving a licensed establishment and began to follow it. Shortly thereafter, he stopped hismotor vehicle and investigated him and detected an odour of alcoholic beverage emanating from his breath. Mr. Lang denied consumingany alcohol. He then read him the breath demand registering a fail. He was arrested for the offence of exceed. He was read his rights tocounsel and cautioned. He ultimately provided two suitable samples of his breath and was released on a promise to appear. [9] Mr. Little alleges a breach of his client’s rights under s.8 of the Charter.

He framed his argument as follows: “ … the arrestingofficer did not have the requisite reasonable grounds to believe that the Applicant had committed an offence under s.253(1)(b of theCriminal Code”. [10] Mr. Saliwonchyk in his materials points to the dictum of the Court of Appeal in R. v. Haas, (ON CA), [2005]O.J. No. 3160 (C.A.) and its projeny by taking the position that a “boiler plate” allegation prejudices the Crown by having to guess whataspect of the seizure it should focus on in its evidence to meet the reasonableness standard.

As a corollary, a bare claim doesn’t complywith Rule 30 of the Rules of Criminal Proceedings which require inter alia, “the grounds to be argued” and an affidavit which included a‘statement of the facts material to a just determination of the exclusionary issue which are not disclosed in any other materials filed insupport of the application”. Anything less, he submits, would amount to a “trial by ambush”. Analysis [11] With respect, I disagree with the Crown’s position. In R .v.

Gundy, 2008 ONCA 284, the Ontario Court of Appeal made it clearthat objections to the admissibility of evidence should either be made before or at the time the evidence is being proffered; not after thefact. In particular, the Court explained that objections to the admissibility of evidence on Charter grounds should not be raised after theCrown has closed its case, given concerns that such an approach would occasion unfairness and prejudice the Crown’s ability to properlyrespond.

Rosenberg J.A. also stated the following at paragraph 50 which is apt in this case: “if the accused does not challenge theadmissibility of the results of the Intoxilizer/Breathalyzer analysis on the basis that the accused's rights under the Charter were violated,the Crown is not required to establish that the officer had reasonable and probable grounds to make the s. 254(3) demand.” See also R. v.McCarthy, 2013 ONSC 599, 42 M.V.R. (6th) 114. [12] Here, Mr. Little filed a Charter application challenging the admissibility of the impugned evidence well in advance of the trialdate as he is required to.

There can be no issue with the timeliness of the application, nor did the parties press this point. The real issue iswhether the alleged “bare” claim occasions unfairness and prejudices the Crown’s ability to properly respond – and prepare. [13] On this record, I find that there is no unfairness to the Crown for two reasons. The first is grounded in law, the second morepractical. In R. v. Tash, (ON SC), [2008] O.J.

No. 200 (S.C.J.) at para 16, Hill J. stated that the question ofcompliance with the rules of the court in the sense of sufficient particularity in documentation filed for a Charter application is … largely a fact specific issue. A warrantless seizure, such as one’s breath in the absence of reasonable and probable grounds is presumedto violate s.8 of the Charter. To displace that presumption, the Crown bears the burden of establishing on a balance of probabilities, the

lawful preconditions for the seizure of Mr. Lang’s breath samples. Here, by filing a notice advancing this claim, Mr. Lang is effectivelyputting the Crown on notice that he will take issue with the officer’s grounds to make the demand. The onus is on the Crown and willallow the Crown to anticipate the issue. It seems to me that if the defence did not raise the issue in advance, the Crown could rely on theprinciples in R. v. Rilling, (SCC), [1975] S.C.J. No. 72 to effectively prevent the issue to be argued later. [14] Mr.

Little in his submissions argued that in any event, Rilling, supra, has been overtaken by other authorities and is no longergood law. As noted by MacDonnell J. in McCarthy, supra, the Supreme Court of Canada has never directly reconsidered the correctnessof its decision in Rilling, supra. For my purposes, I need not resolve this issue but suffice to say, Rosenberg J.A. in Gundy, supra,reviewed the authorities on point and concluded that Rilling remains good law in the post-Charter era – which for Mr.

Lang means, hemust file a Charter application challenging the investigating officer’s grounds if he seeks relief and he has done so. [15] The Rules require the ‘grounds to be argued’ and in this case – where the Crown bears the burden on the issue – those groundsare specified. Mr. Little in his materials pleads, through an affidavit of a student in his law firm, Amy McQauig, that his client “advised[the officer] that he had not consumed any alcohol [this evening]”. Presumably, this will mean that the court will have to weigh in on thecredibility and reliability of the officer’s evidence who may say, Mr.

Lang did admit to the consumption of alcohol or at the very least,he detected alcohol on his breath. The same assessment may have to be made for the defendant should he choose to testify. In R. v. Bush,2010 ONCA 554, Durno J. sitting ad hoc for the Ontario Court of Appeal stated “whether reasonable and probable grounds exist is afact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered: seeShepherd, at para. 21; R. v. Rhyason, [2007] 3 S.C.R. 108, [2007] S.C.J. No. 39, 2007 SCC 39; R. v. Elvikis, [1997] O.J. No. 234, 31O.T.C. 161 (Gen.

Div.), at para. 26; Censoni, at para. 47. Mr. Little has identified a live factual issue and the Crown has notice of it. Theofficer’s grounds will have to be assessed as a whole. [16] Further, Mr. Saliwonchyk in his material pointed to ten possible areas that could be challenged as a result of issues relating toreasonable grounds which the Crown cannot prepare for without knowing particulars of the complaint. In my view, requiring detailedparticulars on an issue where the Crown bears the burden, would amount to improperly shifting the burden on the defendant . Moreover,not all areas as identified by Mr.

Saliwonchyk relate to the formulation of reasonable and probable grounds and instead are separateissues that commonly arise in drinking and driving cases. Given that courts must look at the totality of the circumstances on the groundsissue, it would be prudent for the Crown to address any issues in the officer’s evidence that would impact the sufficiency of both theobjective and subjective grounds to make the breath demand.

Moreover, eliciting evidence viva voce whether it’s through examination inchief or through cross-examination, can also unveil additional information, which may impact a courts determination of the reasonableand probable grounds issue. In Haas, supra, cited by Mr. Saliwonchyk in support of his position, the Crown didn’t call any evidence ofreasonable and probable grounds because Mr. Haas chose to challenge the lack of grounds after the evidence was completed.

Thatsimply won’t arise in this case as the Crown can anticipate the issue in meeting its burden on the s.8 argument. [17] On the above basis alone, I would dismiss the application for particulars. Given my conclusion, I need not consider Mr.Saliwonchyk’s alternative position that there are sound policy reasons as well that particulars should be provided where the defencealleges a “reasonable grounds” breach of s.8.

Having said that, I do wish to offer some additional comments which are more pragmatic innature given the exigencies of busy trial courts where an issue such as this may arise frequently. [18] The parties advised me in submissions that during pre-trial proceedings, they agreed to a blended hearing of the evidence, whichavoids duplication of the evidence.

Practically, this means that even in areas where the defence bears a burden, if the evidence touchingupon a Charter issue is also going to form part of the Crown’s case (such as an application under s.9/10 of the Charter), the evidencewill be called once and not twice. In these cases, it is incumbent on the court to maintain control over which party has the burden on eachissue and what body of evidence applies to a fair determination of that issue. In my view, this approach should be encouraged notdiscouraged, as the proper use of the procedure does not operate unfairly to the parties. See R. v.

Bujitor, [2003] O.J. No. 4595 (C.A.).Obviously, there may be cases where a blended hearing is not possible but from an administration of justice perspective, blendedhearings serve a useful function provided they are not abused. There is no abuse of this process in this case nor was it argued as such. [19] Here, there will be a blended hearing, which means that the investigating officer who ultimately formed the grounds for thebreath demand, will be called by the Crown – on some issues. There is no prejudice to the Crown as the officer will have to be called inany event.

He can be asked what his grounds were to make the breath demand. [20] While I am sensitive to Mr. Saliwonchyk’s concerns, I’m of the view that they simply don’t arise on this record. Moreover, if thecomplaint was on a Charter issue where Mr. Lang bore the onus, the analysis may be different but that is not the case. Mr. Lang hasdischarged his obligations. In my view, there is no legal responsibility on him to do any more. The

section 7 allegation is intertwinedwith the ss.8 and 9 complaints and will likely turn on those issues. There is no unfairness in this case. If issues of unfairness arise as thematter progresses, according to Gundy, supra, trial judges are vested with discretion on how to deal with them. See also R. v. Loveman(1992), (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.), R. v. Blom (2002) 157 C.C.C. (3d) 322 (Ont. C.A.).

Conclusion [ 21 ] The application to summarily dismiss the ss.8/7 Charter arguments and the request for particulars are both dismissed. [ 22 ] I would like to thank both counsel for their helpful submissions and materials on this issue. Released: December 17, 2015 Signed: “Justice F. Javed”