Her Majesty the Queen - v. -, 2011 SKPC 83

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 083 Date: June 1, 2011 File: 24354436 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darrell Arthur Ginter Mr. Glen Herman, Q.C. For the Crown, Applicant Mr. Mervin Nidesh, Q.C. For the Accused, Respondent _____________________________________________________________________________ APPLICATION FOR AN ORDER FOR PARTICULARS L.A. MATSALLA , J _____________________________________________________________________________ [ 1 ] The accused stands charged with the offence of impaired driving contrary to section 253(1) (

a) of the Criminal Code and with having consumed alcohol above the legal limit and operating a motor vehicle contrary to section 253(1)(

b) of the Criminal Code. The trial in this case is pending. In advance of the trial, counsel for the accused provided written notice to the Crown to advise that the accused’s rights under the Charter had been infringed and so, pursuant to section 24(2) of the Charter, the evidence obtained in violation of those rights should be excluded . It is alleged that the accused’s

section 7, 8, 9, 10 and 11(

d) rights had been violated. General

comments respecting the alleged violation of each Charter right are set out and reference is made to some of the principles that haveinterpreted the extent of those rights. Throughout the notice there is little or no reference to any of the evidence that the defence expectsto rely upon to establish each of the violations - other than to say that the accused intends to rely upon Crown disclosure and uponnumerous cases that are listed in the notice.

Furthermore, in respect of each Charter right, the notice makes reference to the onus ofproof that rests with the Crown. [2] The Crown, in this application, argues that it is entitled to particulars of the alleged breaches without which the notice is notnotice at all and that without which the Crown will be unable to address the allegations. [3] The defence responds that the information in the notice is sufficient and, in any event, since the samples of breath wereprovided without warrant, the onus is on the Crown to establish reasonableness and, therefore, the defence need not make reference tothe evidence upon which it intends to rely to establish each Charter violation. [4] The Charter of Rights and Freedoms does not itself address the procedure that is to be followed when an application for theexclusion of evidence is made under section 24(2).

The Courts in Saskatchewan have referred favourably to the Ontario Court of Appeal case of R. v. Kutynec[1], in which the Court considered the appropriate procedure that should be used in such applications. [5] In Kutynec the Court, at paragraph 17, made this observation as to the admissibility of evidence: 17. Admissibility is the problem of the party with the burden of adducing evidence. Where the evidence is directed to the proof of acriminal offence, the onus of showing it is admissible is upon the Crown.

Counsel for the accused can wait until the evidence isproffered and make timely objection...Under the Charter, the burden of having the court reject evidence that is otherwise admissiblepasses to the defence. The Crown does not have to anticipate that the defence will seek to exclude Crown evidence on the basis of analleged Charter breach. The defence must make its application for relief under s. 24(2) before the evidence is admitted, not after it hasbeen accepted: R. v. McNulty, a judgment of the Ontario Court of Appeal, released November 18, 1991.

And these comments, at paragraph 16, on the matter of the burden: 16. As a basic proposition, an accused person asserting a Charter remedy bears both the initial burden of presenting evidence that hisor her Charter rights or freedoms have been infringed or denied, and the ultimate burden of persuasion that there has been a Charterviolation. If the evidence does not establish whether or not the accused’s rights were infringed, the court must conclude that they werenot: see R. v. Collins, (SCC), [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, at p. 277 S.C.R., p. 13 C.C.C.

It is obvious thatcounsel for the accused is not entitled to sit back, as he did in this instance, and hope that something will emerge from the Crown’s caseto create a Charter argument or assist him in one he is already prepared to make. The onus is on the accused to demonstrate on a balanceof probabilities that he is entitled to a Charter remedy and he must assert that entitlement at the earliest possible point in the trial. Otherwise, the Crown and the court are entitled to proceed on the basis that no Charter issue is involved in the case. [6] Our Court of Appeal in R. v.

Pelletier[2], at paragraph 17, reiterated that the Crown is entitled to know when it tendersevidence whether the defence takes objection to the evidence and it should be so aware before its case is complete. The Court, atparagraph 20, went on to state that there is the “need for some element of discipline” respecting section 24(2) applications.

To that end,Finlayson J.A. in Kutynec said this at paragraph 19 respecting the conduct of a trial in orderly fashion: 19. ...the trial judge is entitled to insist, and should insist, that defence counsel state his or her position on possible Charter issueseither before or at the outset of the trial. All issues of notice to the Crown and the sufficiency of disclosure can be sorted out at thattime. Failing timely notice, a trial judge, having taken into account all relevant circumstances, is entitled to refuse to entertain anapplication to assert a Charter remedy.

He went on to say that the trial judge is to decide the procedure to be followed. At paragraph 21 of the judgment he referred to the following excerpt from R. v. Hamill[3]:

21. ...but, at the least, counsel for the accused should be required to state with reasonable particularity the ground upon which the application for exclusion is made. That much is essential for an orderly trial of the issue.

It follows that, if the statement of grounds does not disclose a basis upon which the court could make an order excluding the evidence, the application may be dismissed without hearing evidence. [ 7 ] However, at paragraph 28, he went on to say that it was his view that it is appropriate to leave matters of “sufficiency of notice and the extent of the offer of proof” to the trial judge and, further at paragraph 29, that even though written notice setting out the breach in some detail is desirable, such a request should not be mandatory. At paragraph 36, it was acknowledged that in some cases a detailed

summary of evidence in support of the application may be difficult for the defence to provide and so some latitude in the trial process is in order. The Court was reluctant to authorize a detailed procedure for such applications. [ 8 ] In Pelletier , our Court of Appeal expressed agreement with the approach used by the Alberta Court of Appeal in R. v. Dwernychuk [4] . In that case the Court reached a number of conclusions after an examination of Kutynec and the case of R. v. Loveman [5] including the following: 6. ...the trial judge may ask defence counsel to summarize the evidence that it would rely upon.

Of course, the defence is not limited to reliance upon evidence which it would elicit on the application. It is entitled to ask the trial judge to consider “all the circumstances of the case”, which includes any evidence elicited by the Crown. More recently, the Court of Queen’s Bench of this province in R. v. Schindelka [6] , while dealing with a pre-trial application for Stay of Proceedings, was faced with an argument from the defence that at no point in the application must the defence provide any evidence in support of the application. At paragraph 21, Mr.

Justice Currie referred to Kutynec as authority for the proposition that the defence must provide a

summary of the evidence that it expects to rely upon in the application. [ 9 ] There has been no argument before me that the Crown failed to make disclosure to the defence. It was not argued that the defence is unable, in this case, to provide a

summary of the evidence upon which the application is based and so I must conclude that the defence is able to particularize the grounds upon which the application is made including reference to the evidence upon which the request for the exclusion of evidence is based. It seems that the defence takes the position that the evidence that has been disclosed to it will be insufficient for the Crown to meet the onus that rests upon it. If that is so, then counsel should be in a position to summarize the evidence or lack of evidence in support of that position. [ 10 ] Counsel is experienced and well respected.

I do not propose to examine the notice in detail or further comment on the sufficiency of the information that has been provided respecting each alleged breach of the Charter . If need be, I will hear any further application for better particulars as may be required. [ 11 ] Therefore, the defence, insofar as it is able, will be required to provide a

summary of the evidence upon which it intends to rely in respect of each alleged Charter breach. A further adjournment of the trial in this case will be necessary to enable the defence to provide such particulars. __________________________

L.A. Matsalla, J [1] (ON CA), [1992] O.J. No. 347 [2] (SK CA), [1995] S.J. No. 115 [3](1984), (BC CA), 14 C.C.C. (3d) 338, [affd. (SCC), [1987] 1 S.C.R.301] [4]1992 ABCA 316 , [1992] A.J. No. 1058 [5](1992), (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.) [6][2008] S.J. No. 142