Her Majesty the Queen - v. -, 2014 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 048 Date: March 3, 2014 Information: 24378654 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan K. Mellquist Appearing: Mr. Rob Parker For the Crown Mr. Merv Nidesh, Q.C. For the Accused DECISION REGARDING SUFFICIENCY OF CHARTER NOTICE D. KOVATCH , J BACKGROUND [ 1 ] Ryan K. Mellquist is charged with driving while his blood alcohol content exceeds .08 percent and with impaired driving.

It is alleged these offences occurred on July 24, 2011 near Assiniboia, Saskatchewan. The matter was set for trial to be held at Assiniboia on November 14, 2013. At the time set for the commencement of trial, Crown counsel, Mr. Parker, objected to the sufficiency of Mr. Nidesh’s Charter notice, and sought particulars as to what the defence’s Charter argument was.

Each side made some arguments regarding the sufficiency of the Charter notice, and each side was given leave to submit a letter to me advising of any relevant case law that supported their position, regarding the sufficiency of Charter notice or lack thereof. I reserved to write a decision regarding the sufficiency of the notice following receipt of those letters.

GENERAL COMMENTS [2] In this judgment, I will be making extensive reference to the decision of His Honour Judge Matsalla in R. v. Ginter, 2011SKPC 83. In that case, Judge Matsalla decided just about all of the issues that are now before me. He quoted from many of the sameauthorities that I quote from below. I entirely adopt his decision and will expand upon some of the comments made by him in thatdecision. [3] What is particularly disturbing is the fact that Mr. Nidesh was the defence counsel in the Ginter case, as well as in this case.

The description of the Charter notice given by Judge Matsalla in the Ginter case would indicate that the Charter notice is verysubstantially the same in this case. However, Mr. Nidesh did not alter his practice regarding the Charter notice after having receivedJudge Matsalla’s decision in Ginter. In addition, in this case, he did not refer the Court or advise the Court of the Ginter decision. Rather, Mr. Parker cited the Ginter decision in his submissions.

In my view, the practice adopted here of having the Court re-litigatethese same issues, without making reference to another decision of this Court is at best questionable and in my view not befitting counselof the stature and reputation of Mr. Nidesh. [4] I am also very upset with myself in that I have allowed very shabby practice with respect to Charter notices to continue. Ihope that by this decision a correction will be made to both the practice of the Court and counsel regarding Charter notices. [5] I begin by noting that Mr. Nidesh’s Charter notice is very lengthy and very general.

I would describe it as being so generalas to be no notice of anything. It contains virtually no statement of the evidence or facts upon which defence will rely in support of itsCharter argument. I will be discussing in much more detail the Charter notice and whether it meets the legal requirements. I note atthis time however, Mr. Nidesh, in argument, has generally attempted to justify the Charter notice by arguing that he was attempting toleave matters open and require the Crown to prove its case. [6] In the case of R. v.

Dwernychuk, 1992 ABCA 316, the Court stated in part as follows: Fair and reasonable notice to the Crown and to the court will better enable the judge to carry out his constitutional duty, mandated by s.24(2), to have regard to “all the circumstances” when he or she decides whether the admission of the evidence would bring theadministration of justice into disrepute. The Crown cannot see to it that all the relevant circumstances which are within the evidentiarycontrol of the Crown are placed in evidence before the court, if the Crown is not made aware in a timely manner that a Charter issue willbe raised.

If the Crown is thus unable to marshall evidence which, given the opportunity, it would place before the court, the judge isrequired to reach his or her decision without knowing what all the circumstances are which it would be within the Crown's capability ofplacing before the court.

If such timely notice is not given, and if it is clear that the defence has lain in ambush when it might have giventimely notice, those are circumstances which in themselves might frustrate the court's duty to have regard to “all the circumstances” andmight lead the court to conclude that the s. 24(2) application should be dismissed without consideration of its merits.

If the merits wereconsidered only on the basis of those selective circumstances which are presented by the defence, and by the Crown when it is forced, inthe absence of notice, to scramble to meet what is presented by the defence, the judge would be asked to exclude the evidence withouthaving regard to “all the circumstances”. That would amount to asking the judge to exercise a constitutional power in a manner whichfalls short of what s. 24(2) contemplates. ...

Moreover, the onus in the case of most allegations that a Charter right has been infringed being upon the defence, there is an element ofunfairness to the Crown if the court allows the defence to lie in ambush and thus requires the Crown to anticipate every possibleinfringement. The Crown would be encouraged to call evidence or have on “standby” Crown witnesses, usually police officers, whomight be able to give testimony concerning possible issues, which when the trial concludes turn out to be non-issues. That is surely not tobe encouraged.

Moreover, it would be, in the result, akin to placing the onus upon the Crown when, in law, it should not be. (Emphasis Added) [7] The Court goes on to refer to the Ontario Court of Appeal judgments in R. v. Kutynec and R. v. Loveman, (ON CA), [1992] O.J. No. 347, where the Court of Appeal described the defence counsel’s strategy as sitting back and hoping thatsomething would emerge from the Crown’s case to create a Charter argument.

[8] In other words, Mr. Nidesh attempts to justify his very general and vague Charter notice on the basis that he wants to leaveeverything open to argue that the Crown has not proved its case. In the Dwernychuk and Kutynec decisions, the Court specificallydisapproved of this very practice. One cannot use an inappropriate or unacceptable practice of procedure to attempt to justify a vaguenotice. THE LAW GENERALLY REGARDING CHARTER NOTICES [9] In my view, The Constitutional Questions Act, R.S.S. 1978 c.C-29.01, of Saskatchewan requires that notice be given of aCharter argument and request for Charter remedy.

In addition, the Court is generally in charge of its own procedure. The ProvincialCourt has issued a practice directive setting out a draft form for Charter notice, and indicating that such a notice must be served andfiled. [10] In addition, there are a number of judicial decisions that speak to the procedure to be followed in Charter cases, including thegiving of proper Charter notice. The leading case in this area is R. v. Kutynec, (ON CA), [1992] O.J. No. 347 (C.A.). In the Dwernychuk, supra, decision, the Alberta Court of Appeal specifically adopts and follows the Kutynec decision. In R. v.

Pelletier(1995), (SK CA), 128 Sask. R. 214, the Saskatchewan Court of Appeal specifically referred to and followed bothKutynec and Dwernychuk. I note that a review of the QuickLaw Note Up service indicates that the Kutynec decision has been cited byCanadian courts on hundreds of occasions, and was cited with approval by Judge Matsalla in the Ginter decision, and more recently in R.v. Manitopyes, 2013 SKQB 112 and R. v. Wilson, 2013 SKCA 128.

Simply stated, despite the fact that the Kutynec decision wasrendered slightly more than 20 years ago, there is every indication that it remains a valid statement of law today. [11] In the Kutynec decision, at paragraphs 16 and 17, the Court made the following comments respecting the onus in Chartercases and how this relates to the necessity of Charter notice: As a basic proposition, an accused person asserting a Charter remedy bears both the initial burden of presenting evidence that his or herCharter rights or freedoms have been infringed or denied, and the ultimate burden of persuasion that there has been a Charter violation.If the evidence does not establish whether or not the accused’s rights were infringed, the court must conclude that they were not: see R.v.

Collins, (SCC), [1987] 1 S.C.R. 265. It is obvious that counsel for the accused is not entitled to sit back, as he did inthis instance, and hope that something will emerge from the Crown’s case to create a Charter argument or assist him in one he is alreadyprepared to make. The onus is on the accused to demonstrate on a balance of probabilities that he is entitled to a Charter remedy and hemust assert that entitlement at the earliest possible point in the trial. Otherwise, the Crown and the court are entitled to proceed on thebasis that no Charter issue is involved in the case.

I also agree with the substance of the observations made by Borins Dist. Ct. J. that defence counsel often confuse the issue ofadmissibility of evidence with the assertion of a Charter right. Admissibility is the problem of the party with the burden of adducingevidence. Where the evidence is directed to the proof of a criminal offence, the onus of showing it is admissible is upon the Crown.Counsel for the accused can wait until the evidence is proffered and make timely objection. Unfortunately, defence counsel havebecome too comfortable with this format; they have not adjusted to the new reality of the Charter.

Under the Charter, the burden ofhaving the court reject evidence that is otherwise admissible passes to the defence. The Crown does not have to anticipate that thedefence will seek to exclude Crown evidence on the basis of an alleged Charter breach.

The defence must make its application for reliefunder s. 24(2) before the evidence is admitted, not after it has been accepted. [12] At paragraph 19 in Kutynec, the Court went on to state: In the interests of conducting an orderly trial, the trial judge is entitled to insist, and should insist, that defence counsel state his or herposition on possible Charter issues either before or at the outset of the trial. All issues of notice to the Crown and the sufficiency ofdisclosure can be sorted out at that time.

Failing timely notice, a trial judge, having taken into account all relevant circumstances, isentitled to refuse to entertain an application to assert a Charter remedy. [13] In the Dwernychuk case, the Alberta Court of Appeal adopted this procedure and in so doing, elaborated upon the reasons forsuch a procedure:

Such a reasonable person would expect that where the defence intends to raise a Charter issue and seek the exclusion of evidence, the procedure followed would be such as to give the Crown and the judge reasonable notice of the intention to do so. As far as the merits of the criminal charge for which the accused is being prosecuted are concerned, the adversary system remains unmodified in terms of the obligations of the defence; the defence need not disclose what evidence of fact or opinion it intends to adduce.

This, it is thought, is a rule which at least in part matches the investigative and prosecutorial powers of the prosecution. However, when it comes to an issue of the exclusion of evidence where there has been an infringement of a Charter right, no similar established rule exists. The reasonable person would expect that defence counsel would make known to the prosecution, either before or at the commencement of the trial, that he or she intends to allege that there has been an infringement of a specific Charter right and to apply for the exclusion of evidence.

Such advance notice would enable Crown counsel and the court to plan and decide how and when best to call witnesses; whether witnesses should be called whose evidence would be relevant to the issue raised and who otherwise would not be called; the order in which witnesses should be called; what questions should be asked; and whether and when witnesses, once they have testified, may be released. It enables Crown counsel to prepare legal submissions in advance rather than hastily and on the spur of the moment.

It enables the judge, with the help of both counsel, to begin to read relevant cases and to put his or her thoughts in order, rather than becoming aware of the existence and nature of a Charter issue only after he or she has heard the evidence without realizing what he or she should be listening for and without being able to exercise his or her limited right to ask questions of witnesses.

If such notice is given, the judge is better able to reach a rational decision which is based on a calm reading and serene appreciation of the law, rather than having to reach a decision, perhaps without due consideration, because of the inexorable pressure of his or her docket. [ 14 ] The Court went on with the paragraph that I quoted in paragraph 6 of this judgment. [ 15 ] What emerges from the above mentioned quote is that these procedural rules are necessary and appropriate in order that the Crown be given a full and proper hearing on the Charter issue, and for the benefit of the Court in a proper and full adjudication of the very important constitutional and Charter issue. [ 16 ] In the Kutynec decision, respecting the content of that Charter notice, the Court clearly states that defence counsel must set forth the factual and legal basis upon which a Charter application will be made.

In Dwernychuk , the Alberta Court of Appeal stated: When the defence does indicate to the court, preferably no later than the commencement of the trial, that it intends to make an application under s. 24(2) to exclude evidence, the trial judge may ask defence counsel to summarize the evidence that it would rely upon. [ 17 ] The Court cites Kutynec as the authority for that proposition. [ 18 ] This review of the above mentioned authorities, in my view, overwhelmingly establishes that defence is required to serve and file with the Court a suitable and adequate notice that it seeks a Charter remedy.

In my view, that adequate Charter notice should meet the following requirements:

(1) It should indicate whether the defence is requesting a remedy under s. 24(1) or (2) of the Charter . If the remedy requested is under s. 24(2), being the exclusion of evidence, it should identify what evidence is being excluded or that all evidence after a certain point in time or event is being excluded.

(2) It should state a particular

section and subsection of the Charter being relied upon and should verbalize the right infringed. For example, it might state that the accused’s right to retain and instruct counsel without delay was infringed contrary to s. 10(

b) of the Charter .

(3) It must summarily state the particular facts or evidence that the defence relies upon to establish the Charter breach. For example, it might state that Officer X indicated that the accused had a chance to call one lawyer and would not be allowed further calls. Further, that the accused will testify that he believed he could not make a further call to a lawyer, and was required to proceed immediately with the breath test. [ 19 ] The only authorities cited by Mr. Nidesh to argue that such notice requirements should not be imposed was R. v. Croft , 2013 ABQB 604 .

However, in my view, that case is completely distinguishable. In that case, defence served a Charter notice and the Crown brought a motion asking for a declaration that the Charter notice was deficient. The Court specifically noted that the Crown proceeded by indictment and directly indicted the accused. As a result, there was no preliminary inquiry. The Court specifically noted that the Crown disclosure to defence counsel was not yet complete. I would conclude that the Court has not backed away from the notice requirements set out by the above mentioned authorities.

Rather, as mentioned in the above mentioned authorities, it has flexibly applied

the process and procedure. It determined in Croft , that at the early stage of those proceedings, it would be unfair to require such a detailed Charter notice from defence counsel. [ 20 ] The above mentioned authorities make it clear that the process is to be fairly and flexibly applied on a case by case basis. For example, in R. v. Yates , 2012 SKPC 104 , Her Honour Judge Whelan held that where the Charter issues were fully discussed at a pre-trial conference, there was adequate notice of the Charter argument even though no formal written notice was served and filed.

The Court might reach a similar conclusion where at the outset of the trial, defence counsel fully stated its Charter application and the evidence to be relied upon. [ 21 ] In a similar vein, a police officer might testify about a matter that was completely unforeseen, on the basis of the disclosure. I would anticipate a Court would allow an amendment of the Charter notice, and may even allow an adjournment of the trial.

However, these are exceptional cases resulting in a flexible application of the procedure, and not facts that can justify a general absence of a Charter notice. [ 22 ] Lastly, I believe the authorities are clear that where adequate Charter notice is not given, so that there cannot be a fair hearing and a full evidentiary base laid for the Charter argument, the Court is not only entitled to refuse to grant any Charter remedy, it probably should decline to deal with the Charter issue. See for example R. v. Nome , 2010 SKCA 147 .

THE CHARTER NOTICE SERVED IN THIS CASE [ 23 ] In this case, the notice served by defence counsel requests a remedy under s. 24(2) of the Charter and lists in fair detail all of the evidence that it wishes to have excluded. It then states: On the grounds that the accused’s rights guaranteed under s. 7, 8, 9 and 10 of the Charter of Rights and Freedoms have been infringed, violated or denied. Particulars of which are as follows: (1) sections 7, 8, 9, 10 and 11. [ 24 ] At that point in the notice, no other grounds are stated.

A little below however, the document says: The grounds in support of the said application are as follows: Introduction and Overview - Charter litigation burden of proof. [ 25 ] It then makes a number of legal statements or arguments such as: Once an accused establishes that a search and seizure was warrantless, the Crown is obligated to establish on a balance of probabilities that it was reasonable. [ 26 ] It makes a number of statements to the effect that the onus is upon the Crown. On the basis of the above mentioned authorities, in my view, the onus is not on the Crown in this Charter application.

Moreover, these are legal arguments and do not in any way set forth a factual basis for the Charter application. Further on, counsel refers to s. 8 and s. 9 of the Charter and s. 254(2) and s. 254(3) of the Criminal Code . Again it asserts that the onus is upon the Crown to establish reasonable grounds for the arrest and lawful demands. At one point, the notice indicates that the demands were not made forthwith. This statement is the closest one comes to any kind of factual assertion or basis for the Charter application. The notice then goes on to deal with s. 10 of the Charter .

The only attempt to identify a factual matter here is as follows:

19. Constable Ross records the accused’s response in the police car after he gave the accused his right to contact a lawyer as follows at 0247: “I got no one to call.” 20. The next note is PW:DYU? Yep. [ 27 ] Further on, the notice states: And further take notice that the accused relies on the following evidence: (1) police officer notes, 2011-07-24 at 240 up to and including 0251, of Cst.

Ross, video recordings of interview room and cell block of and in Assiniboia RCMP Detachment at 0300 until 0425 and the cross-examination of police witnesses; ... [ 28 ] The notice goes on from there to refer to a large number of cases and attempt to state a number of general propositions from those cases. [ 29 ] I have set out above the requirements of an appropriate and adequate Charter notice. I conclude that this Charter notice is completely inadequate and completely fails to meet the above mentioned legal requirements.

The Charter notice is so general as to amount to no notice of anything except that defence intends to make a Charter argument. What other conclusion can be drawn from a notice that the accused’s rights under s. 7 , 8 , 9 , 10 and 11 of the Charter have been infringed. [ 30 ] Secondly, and just as importantly, there is no indication of the factual basis or the evidentiary basis to found the Charter application. The Crown is completely unable to ascertain the case they are to meet.

If a Charter voir dire proceeded on the basis of this notice, both the Crown and the Court would learn for the first time the factual basis of the Charter application when the evidence was presented in Court. Clearly that is untenable and unacceptable. CONCLUSION [ 31 ] In the course of argument, Crown counsel may have asked, as they sometimes do, to have defence particularize its Charter notice and argument. I don’t feel that I should do that. I will say this however. In my view, this Charter notice does not advise of or place any Charter issue before the Court for adjudication.

Unless this is remedied in a timely and appropriate fashion, I will decline to adjudicate upon any Charter issue and decline to grant any remedy under the Charter . [ 32 ] In all future cases, where a Charter notice is served, I will, prior to the commencement of the evidence, engage counsel in a discussion of the Charter application and the particular facts or evidence relied upon for that application.

If the written notice and that discussion do not give adequate notice of the Charter issue and the particular evidence to be relied upon, I will decline to deal with any Charter issue and decline to grant any Charter remedy. [ 33 ] Dated at Moose Jaw, Saskatchewan this 3 rd day of March 2014. D. Kovatch, J