Her Majesty the Queen - v. -, 2015 SKPC 153

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 153 Date: November 12, 2015 Information: 24530929 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert P. Heilman Appearing: Ms. Victoria Kindrachuk For the Crown Mr. Mike Owens For the Accused DECISION ON APPLICATION B.G. MORGAN , J BACKGROUND [ 1 ] This is a decision on a Crown application to strike the defence’s Charter application. Mr.

Heilman is charged with one count of impaired operation of a motor vehicle, and one count of driving while his blood alcohol level exceeded the permitted amount, arising out of the events of March 1, 2014, at Kindersley, Saskatchewan. The charges are particularized in the Information. [ 2 ] The trial started on February 10, 2015, in Kindersley. Two civilian witnesses were called before the matter was adjourned to

be continued on June 12, 2015, in Saskatoon. That date was further adjourned to September 18, 2015, in Saskatoon, as defence counsel was required in Court of Queen’s Bench for a matter on June 12, 2015. [ 3 ] In a letter dated January 12, 2015, prior to the trial date, defence counsel gave written notice that he would be bringing an application to exclude evidence pursuant to s. 24 of the Charter , alleging breaches of ss. 8, 9 and 10(

b) of the Charter . On that trial date, as no police officers were called, that application was set over to the continuation date. [ 4 ] On July 8, 2015, Mr. Owens served another Charter notice, seeking a judicial stay of the charges pursuant to s. 24(1) of the Charter , alleging a violation of the s. 7 Charter right of his client to make full answer and defence. That application was based on alleged non-disclosure of video/audio recordings that Mr. Owens had previously requested. [ 5 ] On the continuation date of September 18, 2015, Crown counsel made an application to strike Mr.

Owens’ initial application for, among other reasons, lack of particulars being provided with respect to the alleged Charter breaches. The Crown relied partly on transcripts from three previous cases at Provincial Court, which I will review later. The argument on this application took enough time that no trial evidence was called, the trial being adjourned yet again to February 4, 2016 for conclusion. I had reserved on the Crown’s application, and this is that decision. I will deal firstly with the ss. 8, 9 and 10 application and then deal with the stay application.

THE DEFENCE APPLICATION UNDER SECTIONS 8, 9 AND 10 OF THE CHARTER Position of the Crown [ 6 ] The Crown’s argument is twofold. The first is that the Charter notice in issue is deficient, in that it is so general as to be worthless. What one might refer to as “boilerplate” notices do not provide any factual background for the alleged Charter breach, the Crown argues, and puts the Crown at a disadvantage when preparing to deal with the Charter issues, because it is not possible to discern what those issues are. The Crown argues that these deficiencies have been brought to Mr.

Owens’ attention on numerous prior occasions, and he continues to file the same generic notice. In the Crown’s view, the time has come to send a clear message by ordering that the he cannot advance his Charter application, arguing that the trial should proceed as if no application was in play. [ 7 ] The second argument that ties in with this is that Mr. Owens’ notice fails to give any type of foundation to justify the Court embarking on a voir dire in the first place. Position of the Defence [ 8 ] Mr.

Owens takes exception to the Crown both bringing this application at the last minute, in his view, and also argues that if the Crown had any issue with the Notice, it was incumbent upon them to advise him of such. [ 9 ] He further notes that the sufficiency of Charter notice seems to be somewhat of a “moving target” in that in a number of cases in which he has used the same type of notice, neither the Crown nor Court raised any objection. He relies on one particular case in which the Crown made the same objection as this, and the Court ruled in his favour.

He essentially argues that the legal landscape on this issue is so fractured that it would be unfair to dismiss the application. Discussion [ 10 ] It would be helpful to review the cases filed by the Crown to put some of these matters into context. [ 11 ] The first in time is a transcript from a decision of September 17, 2012, the cases of R v Peter Andrew Martin and R v Curtis

[ 11 ] The first in time is a transcript from a decision of September 17, 2012, the cases of R v Peter Andrew Martin and R v Curtis Craig Suchan . These were two different cases, both set on the same date. In that transcript, the trial judge referred to the Charter notice as being one that “follows that which is of a practice directive on the Saskatchewan Provincial Court website. It follows it in form but it is lacking in substance” (page 6). The Court noted that there was no recitation of relevant facts to be relied on, and pointed out that it was not possible to know what the Charter argument was.

The Court made note of the need to control its own process, clearly being of the view that particulars in a notice should be fulsome. The trial was adjourned, so nothing came of the lack of sufficient particulars being provided in that instance. [ 12 ] The next case in time was before a different Provincial Court Judge in mid-January 2013, in the case of R v Colby Paydli . In that case, the Crown raised the argument that the notice was deficient, and after considering lengthy submissions from each of Crown counsel and Mr.

Owens, the Court made a number of comments. [ 13 ] The Court noted that there were essentially three options open to it, referring to the options the Crown had suggested. The first would be to proceed to trial without entertaining the application as set out in the notice. The second would be to have the defendant present the basis for the Charter application orally in Court, prior to embarking on a Charter voir dire . The third would be to adjourn the matter, in order to ensure proper details were provided, that being the option that the Court ultimately determined was appropriate in the circumstances.

The Court determined that the delay would be attributed to the defence due to the lack of sufficient particulars in the notice, and also suggested that a different remedy might be utilized in future matters. [ 14 ] The third transcript the Crown filed was from R v Lloyd Steven Sloboda , from a trial held on June 24, 2014, before the same judge who dealt with the Martin and Suchan matters some two years earlier. [ 15 ] In that case, after citing a number of prior decisions and considering the matter, the Court, again having found the notice to be completely inadequate, disallowed the application, and proceeded to trial without considering the Charter issues. [ 16 ] It is against that background that the Crown essentially takes the position that Mr.

Owens has had ample warning, and urges the Court to disregard the Charter notice and proceed to trial in its absence. [ 17 ] The conviction in Sloboda was appealed, and we now have the benefit of the decision on that case ( R v Lloyd Sloboda , 2015 SKQB 242 ). In my view, that case puts an end to any confusion or uncertainty in matters.

In my view, besides being of course binding on me, that case is dispositive of this matter. [ 18 ] The second ground of appeal is germane to this case: Even though Notice of the said Charter violations were provided to the Court and the Crown in excess of 14 days prior to the trial date, neither the Court nor the Crown complained prior to the trial date that the Notice was deficient. Only on the trial date did the Crown object to the sufficiency of that Notice and the Trial Judge ruled that the Appellant would not be allowed to challenge the Crown’s case on the basis of the defences [sic] Charter violations.

This was unfair as it should have, at the very least, resulted in an adjournment of the trial instead of the Court’s refusal to determine the case on its merits. [ 19 ] After going through the background (which included a review of the practice directive requiring notice) the jurisdiction and standard of review, and the case law, Mr. Justice Gabrielson started his analysis at para. 17. A number of conclusions he reached in that case provide answers to the arguments advanced in the present case, with which I now deal.

Analysis [ 20 ] Gabrielson J. held that the “...the learned trial judge was correct in his determination that the notice provided did not comply with the practice directive. There is no statement of the particular facts or evidence that the defence relies upon.” (para. 23)

[ 21 ] The Court went on to hold that the Crown “. . . needs to know what the alleged basis for the notice is so that it can call the appropriate evidence to meet the challenge. The trial judge needs to know if there is even a viable Charter issue in order to decide whether it is necessary to enter into a voir dire .” (para. 23) [ 22 ] It is useful to compare the notice provided in the Sloboda decision with the notice at issue in this case.

The notice provided to the trial judge in the Sloboda decision was in a letter attached to the notice, which reads as follows: We confirm we will be making Application at the trial of this matter to exclude from evidence, pursuant to s. 24 of the Charter the results of the breath test taken from the accused due to our client being arbitrarily detained and as a result of detention, he was unlawfully searched when breath samples were taken from him.

Our client’s rights as protected under sections 8 and 9 of the Charter were infringed were violated [ sic ] as the officer did not have the requisite reasonable and probable grounds to do so. In other words, the criteria as set out for the making of a breach demand as set out in s. 254(3) of the Criminal Code was not satisfied in this case.

We will be seeking the exclusion of any evidence emanating from these breaches pursuant to section 24(2) of the Charter . [ 23 ] The comparable portion of the notice in this case reads as follows: We confirm we will be making Application at the trial of this matter to exclude from evidence, pursuant to s. 24 of the Charter any evidence emanating from the said breach, including the results of the breath test taken from the accused due to a violation of his Charter 10(

b) right to counsel of choice. The alleged violation is based on the fact that the accused was not provided a reasonable opportunity to contact his lawyer of choice in private and that he at no time waived his right to speak with his counsel of choice in private . . . it is our view that our client’s right not to be arbitrarily detained as protected by s. 9 of the Charter was violated because the officer did not have the requisite rationale to stop our client in the first place. We will be seeking the exclusion of any evidence emanating from this said breach from being admitted into evidence pursuant to

section 24 of the Charter . [ 24 ] I find the notice in Sloboda is essentially the same as the notice in this case, and is insufficient. There are no facts to support the alleged breach, and all that is contained in the notice is a bald conclusory statement that the Charter has been breached. That is of no use to the Crown in preparing its case to meet the Charter challenge, and it is of no use to the Court. [ 25 ] I cannot accept Mr.

Owens’ argument that the basis of the breach is sufficiently outlined in the disclosure for two reasons. [ 26 ] The first and most obvious reason is that the Court does not receive a copy of the disclosure, and as a Charter notice is to assist both the Crown and the Court to know in advance what is in issue, it is of no use to the Court to advise it that the answer is in something the Court does not have. [ 27 ] However, the second reason is equally compelling and that is that it is not the job of Crown counsel to try to guess what portion of the disclosure allegedly offends the Charter right in issue. [ 28 ] In the absence of a Charter breach being raised by the defence, a case would proceed in the absence of any consideration of a Charter breach.

It is, therefore, the job of the defence to lay out some kind of ground work to both allow the Court to determine whether or not a voir dire is necessary, and to allow the Court to determine what the issues are, in order to have an efficient use of court time. As well, of course, the Crown needs to know what evidence it may need to call to deal with the Charter challenge. [ 29 ] With respect to the argument that it is somewhat inappropriate for the Crown to raise these matters at trial, Mr. Justice Gabrielson deals with that at para. 33.

Although he does state that it would have been preferable had it been raised in advance, that seems to me to stop short of placing some kind of positive obligation on the Crown to do so, and it does not place an obligation on the Crown to draw to the defence’s attention any deficiencies in the latter’s Charter notice. I am not prepared to create such an obligation in this case. [ 30 ] An argument was also raised that the Provincial Court, being a statutory court, lacks the jurisdiction to make rules. However,

as was pointed out in Sloboda , it is “clear that the Provincial Court was not making rules but rather giving practice directives” (para. 26), that is, they represent the “expectations of the court” (para. 27). This flows, it seems to me, from a trial judge’s “inherent right to control the court’s own practice” (para. 24). [ 31 ] What ultimately occurred in Sloboda was that the appeal was dismissed, on the basis that no substantial miscarriage of justice occurred in that case.

The trial judge dealt with the issue as to whether or not the police officer has the requisite reasonable and probable grounds required under s. 254(3) of the Criminal Code to make the breath demand, and determined that the officer in fact had those grounds.

As such, the refusal to allow the Charter application to proceed did not result in a substantial miscarriage of justice. [ 32 ] What the appeal court did determine, however, on the issues pertinent to this decision, was that a trial judge should “explore all options and balance the various competing interests before ruling that the accused was not entitled to advance a Charter -based application to exclude evidence” (para. 34).

Having concluded that the notice in this case is insufficient, I now turn to the question of what remedy is appropriate. [ 33 ] As this case unfolded, there was no need to consider the question of the sufficiency of the notice on the first trial date, as no police officers testified; the police were the relevant witnesses the defence would need to cross-examine on the Charter application. It was not until the adjourned date that the issue was raised, and the argument on that exhausted the available time. As well, the cases filed had to be reviewed, leading to the need to adjourn the trial to February 4, 2016.

There is an abundance of time between today’s date and February 4, 2016, to remedy this situation in a way that does justice to everyone. And I think Mr. Owen’s argument that this type of notice has been found acceptable in the past has considerable merit. The appeal decision in Sloboda does clearly speak to the issues in this application, but the notice in issue in this application pre-dated that decision. [ 34 ] Against this background, and the circumstances of this case, the remedy sought by the Crown is not, in my opinion, required.

In this case, as a continuation date already exists, an adjournment with conditions is an appropriate remedy. What may be an appropriate remedy in another case is a matter I need not deal with at this time. However, I would note that any potential remedy would appear to be based on the Court’s common law ability to control its own process, and that a remedy is not necessarily tied to a breach of a practice directive. [ 35 ] Therefore, the Crown application is dismissed, without prejudice to raise it again if necessary.

If defence counsel wishes to pursue these alleged Charter breaches on the adjourned date, he is to file a notice that is in compliance with the practice directive by December 31, 2015. Any delay from the September 18, 2015 date to the continuation date of February 4, 2016 is attributable to the defence. [ 36 ] I expect that notice, if filed, to be detailed and complete, with enough facts on which it is based to allow the Crown and the Court to be prepared to address it. If the Crown feels it is not, they may choose to raise this issue again, as, of course, can the Court on its own initiative.

THE DEFENCE APPLICATION FOR A STAY OF PROCEEDINGS [ 37 ] I am not prepared to entertain that application until the trial is concluded, as in the absence of having heard the evidence, it would be premature to determine if a stay of proceedings is the appropriate remedy. As this trial has been adjourned in order to hear from the police witnesses, the trial is not concluded. Mr. Owens will be able to further argue that application after the evidence is in, and I can then hear further argument from both Crown and defence. I will therefore refrain from dealing with it further at this point. ______________________ B.G.

Morgan, J