R. v. Short, 2023 BCPC 42

Citation: R. v. Short 2023 BCPC 42 Date: 20230306 File No: 23058 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. MATHEW SHORT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: P. Cheeseman Counsel for the Defendant: M.T. Mulligan Place of Hearing: Colwood , B.C. Dates of Hearing: January 17 - 18, March 1, 2023 Date of Judgment: March 6, 2023

The Issue [1] Mr. Mulligan, counsel for Mr. Short, asks me to declare a mistrial, because Crown counsel, Mr. Cheeseman, tendered inevidence copies of Mr. Short’s criminal record and driving history during the course of a voir dire to determine the admissibility of otherdocuments. Background [2] This is not a jury trial. Jury trials are not conducted in the Provincial Court of British Columbia. [3] I am mindful that the Crown has not yet closed its case, and that Mr. Short has not yet been called upon to decide whether totender evidence in his defence. What follows are not findings of fact, but rather a

summary of the evidence which I have heard thus far. [4] Mr. Short is charged with impaired driving and dangerous driving causing bodily harm, arising from a motor vehicle accidentwhich occurred on February 7, 2021. After the accident, Mr. Short was transported by ambulance from the accident scene to theemergency ward of a nearby hospital. The investigating police officer, Constable Chow, rode with him in the ambulance andaccompanied him into the emergency room. Shortly after they arrived at the emergency room, Constable Chow demanded that Mr.Short provide a blood sample pursuant to

section 320.28(2)(

b) of the Criminal Code. Constable Chow provided Mr. Short with aCharter warning and arranged for him to speak by telephone with duty counsel. After speaking with duty counsel, Mr. Short toldConstable Chow that he would provide a blood sample, but that he would not speak further with Constable Chow. [5] Two blood samples were taken from Mr. Short by a technician in the emergency ward. Constable Chow submitted them foranalysis, and the laboratory reported a blood alcohol content of 161 milligrams of alcohol, plus or minus 2 milligrams, in 100 millilitresof blood.

That is roughly double the legal limit where impaired driving is alleged. [6] Mr. Cheeseman tendered, as part of the Crown’s case, certificates from the technician who took the blood samples in theemergency room and the analyst who later analysed the samples. Mr. Mulligan objected to the admissibility of those certificates, and Ideclared a voir dire to determine their admissibility. The voir dire has not yet been completed, and I have not yet heard Mr. Mulligan’ssubmissions on the issues of admissibility. However, I gather from what I have heard thus far that Mr.

Mulligan raises issues about: (i)the adequacy of Mr. Short’s opportunity to speak with counsel before deciding whether to comply with the demand for a blood sample;and (ii) whether the Crown provided adequate notice of its intention to tender the two certificates in evidence, as required by section320.32(2) of the Criminal Code. [7] In respect of the latter issue, Mr. Cheeseman tendered on the voir dire the evidence of Ms. Truman, a member of the staff at hisoffice. Ms. Truman said that, in December, 2022, she sent a package of documents to Mr. Mulligan, including: (

i) copies of the twocertificates; and (ii) express notice that the Crown would offer them in evidence at trial. Mr. Cheeseman tendered a copy of the packagein evidence on the voir dire. It includes: a. Mr. Short’s driving record, which comprises a conviction for impaired driving in 2017, a speeding ticket in December, 2020, a 24-hour roadside prohibition for impaired driving in February, 2021 and a conviction for driving without insurance in February, 2021; b. Mr. Short’s criminal record, which has a single entry, being his impaired driving conviction in 2017. Mr.

Cheeseman did not refer to the driving record or to the criminal record during Ms. Truman’s evidence, and I did not look at them. [8] At the conclusion of Ms. Truman’s evidence in chief, Mr. Mulligan applied for a mistrial, on the ground that Mr. Short’scriminal record and driving record should not have been tendered in evidence on the voir dire. During his submissions, he referred me tothe driving record and the criminal record, which was when they first came to my attention.

Legal Principles [9] Generally speaking: a. the fact that an accused person has previously committed a similar offence is not relevant to the question whether he committed theoffence with which he is charged; and b. evidence of previous convictions for similar offences is not admissible in support of an inference that the accused person committedthe offence charged. Mr. Mulligan is correct in his assertion that the criminal record and driving record are not relevant documents, and should not have beentendered in evidence.

In R v Popoff (1959) (BC SC), 126 CCC 236, Justice McInnes said: It is a well-established principle of law that on the trial of an accused no evidence may be given in the case for the prosecution againsthim of any previous convictions. Such evidence can only be adduced in cross-examination of the accused should he take the witness-stand. The question before me is whether an order for a mistrial is a necessary or appropriate remedy in this case. [10] The purpose of a voir dire is to determine the admissibility of evidence.

During a voir dire, the presiding judge often hearsevidence which is ultimately determined to be inadmissible. Perhaps the most compelling example is a confession by the accused whichis determined to be inadmissible because of the circumstances in which it was made. The trial judge hears the content of the confession

during the course of the voir dire, but, unless a mistrial is ordered, is required to disregard the confession if it is determined to beinadmissible. The trial then proceeds, and the trial judge is required to render a verdict on the admissible evidence without regard to theconfession. The point was made eloquently in R v Peters (SK KB), [1991] SJ No. 527; 96 Sask R 177; 35 MVR (2d)14:: Judges of facts, whether they be juries or judges sitting alone, have a sworn duty to base their conclusions solely on the admissibleevidence which has been adducing during the course of the trial.

Quite often evidence is adduced which must be ignored. The evidencemay be irrelevant. Conversely, it may be relevant and of probative value but may be deemed inadmissible because its prejudicial value tothe accused outweighs its probative value. In those instances, the evidence, or at least the nature thereof, will likely have been disclosedto the trier of fact. If the trier is a jury, clear instructions will be delivered to ignore the inadmissible evidence.

If the trial judge considersthat the inadmissible evidence may nevertheless unduly influence the judgment of the jury, he may exercise his discretion and declare amistrial. It does not appear, however, that he possesses a discretion to dismiss the indictment. Trials of charges contained in informations are not, of course, conducted before a judge and jury. By analogy, however, if inadvertentevidence should be adduced before a judge, and he considers that he will be unable to ignore such evidence when making his finaldecision, the proper course would be to declare a mistrial: Attorney General of Quebec v.

Bissonnette, supra. To equate an irregularity toa statutory prohibition would seem to be an unwarranted extension of the intention of Parliament. Very often trial judges are required to determine the admissibility of evidence which may be highly damaging to the accused, such asstatements by the accused, or intercepted communications. The evidence, if admitted, may be a very significant factor in thedetermination of the guilt or innocence of the accused. Generally speaking, it is necessary for the trial judge to hear a good deal aboutthe evidence before a decision can be made as to its admissibility.

Even although the exact statement alleged to have been made by theaccused may not be revealed, it may be properly inferred that there would be no attempt to introduce it into evidence unless it tended toestablish the guilt of the accused. There may be instances when the trial judge is incapable of ignoring very damaging facts disclosed to him which are not, for one reasonor another, admitted into evidence.

But if a trial judge is continually unable to make a decision based solely on the admissible evidencewhich has been adduced, the only permissible inference is that he is incapable of performing the very action he was appointed toperform. [11] I conclude that I should order a mistrial if and only if there is a risk that: (

i) Mr. Short’s previous record might influence theconclusions which I will draw from the admissible evidence in this case; or (ii) reasonable and well-informed members of the publicmight think that I might be so influenced. There is no such risk. I am accustomed to disregard things which (in hindsight) I should nothave been told, and will do so in this case. I think that reasonable and well-informed members of the public have confidence in theability of judges to do that. [12] I appreciate that the issue may be more difficult in jury trials. [13] Mr.

Mulligan says that the line of reasoning set forth above is not open to me because the judgments in Popoff (supra) and in R vNiemi 2005 BCPC 338; [2005] BCJ No. 1739 require me to make an order for a mistrial in these circumstances.

He points out,correctly, that I am bound to follow and apply each of those decisions by the doctrine of stare decisis as set out in Re Hansard SpruceMills Ltd. (BC SC), [1954] BCJ No. 136; [1954] 4 DLR 590. [14] Popoff was concerned with the application of section 789(2) of the Criminal Code, which provides: No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall containany reference to previous convictions. Mr. Mulligan and Mr.

Cheeseman agree that, in this context, an “information” is the originating document in a prosecution in which theCrown proceeds summarily. [15] In Popoff, the information disclosed Mr. Popoff’s previous convictions for impaired driving. There is no indication in thejudgment that the issue was raised before the trial judge, or that an application for a mistrial was made to the trial judge. On appeal,Justice McInnes concluded that the information offended section 789(2), and that the appropriate remedy was to quash Mr. Popoff’sconviction. The word “mistrial” does not appear in the reasons given by Justice McInnes.

His reasons contain no discussion of theprinciples discussed in Peters, and, in particular, no discussion of the question whether a declaration of a mistrial is always adiscretionary remedy or may be mandatory in some circumstances. [16] Popoff is not directly applicable to the case before me. The information in this case contains no indication that Mr. Short hasever before been convicted of any offence.

In this case, unlike Popoff, I am asked to declare a mistrial. [17] In Niemi, the arresting officer gave evidence of the following remark made by the accused while awaiting a breathalyzer test: My last impaired was in …. The officer was then interrupted by the “timely intervention of counsel”, and so did not complete his account of the utterance of theaccused. At paragraphs 12 – 14 of his reasons, His Honour Judge Gill said (underlining added): … it is submitted that the court should be able to disabuse its mind of the matter … and weigh the case against the accused only basedon admissible evidence.

With respect, I must disagree with that submission. … it is one thing for the court to hear evidence of questionable admissibility butwhich it is duty bound to hear on a voir dire and later determine it not to be admissible or alternatively, to admit it but to later exclude it,for example, on the basis of a charter breach. It is another thing entirely, for the court to be apprised of information clearly prejudicial to

the accused, the admissibility of which is out of the question because of the potentially prejudicial effect it could have on the trial process. In light of the foregoing and in the particular circumstances of this case I conclude that the possibility of prejudice, both actual and perceived, to the accused arising out of the unnecessary and intentional disclosure by a crown witness who ought to have been better prepared cannot be remedied through any other mechanism than to declare a mistrial.

He then directed a new trial before a different judge. [ 18 ] Judge Gill clearly did not say that a declaration of a mistrial may be mandatory in some circumstances. [ 19 ] It is to be noted that Judge Gill referred to the “… possibility of prejudice, both actual and perceived, to the accused …”. I take that to mean that Judge Gill considered there to be a risk in that case that he might be unable to disabuse himself of the knowledge of the accused’s previous convictions. For that reason, he ordered a new trial before a different judge. [ 20 ] I conclude that: (

i) neither Popoff nor Niemi is inconsistent with Peters ; (ii) Peters was correctly decided; and (c). a mistrial is always a discretionary remedy, to be granted or refused according to the particular circumstances of the individual case. Disposition [ 21 ] The application for a mistrial is dismissed. March 6, 2023 ____________________________ Judge T. Gouge Provincial Court of British Columbia