2021 QCCQ 4601, 2021 QCCQ 4601

R. c. Von Teichman 2021 QCCQ 4601 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal and Penal Division” No.: 550-01-111955-193 DATE: May 13, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

MARK JOSEPH VON TEICHMAN Accused ATTORNEY GENERAL OF QUEBEC Impleaded party ______________________________________________________________________ Ruling on the admissibility of extrinsic evidence ______________________________________________________________________ [ 1 ] The applicant, Mr. Mark Joseph Maria Von Teichman, is charged with having a blood alcohol concentration over the legal limit within two hours of having operated a motor vehicle, pursuant to para. 320.14(1) (

b) of the Criminal Code ( Cr. C .). [ 2 ] The applicant challenges the constitutionality of this provision, claiming that it is overbroad and therefore in violation of s. 7 of the Canadian Charter of Rights and Freedoms (the Charter ). He seeks a declaration from this Court that para. 320.14(1) (

b) Cr.

C. is of no force and effect against him. [ 3 ] As part of its response to this constitutional challenge, the impleaded party, the Attorney General of Quebec (the “A.G.”), seeks to adduce in evidence, among other things, the following two reports: - “Police-reported crime statistics in Canada, 2015 ”, published in 2016 by the Canadian Centre for Justice Statistics; and - “The Alcohol and Drug-Crash Problem in Canada, 2014 Report ” , published in 2017 by the Canadian Council of Motor Transport Administrators. [ 4 ] The Applicant objects to these two reports being tendered in evidence. [ 5 ] For the following reasons, the Court finds that the two reports may properly be admitted in evidence under the doctrine of judicial notice.

ANALYSIS 1. The law [ 6 ] The two reports at issue consist of “extrinsic evidence”, i.e. evidence that is not brought out by the examination of the witness testifying before the court. [1] [ 7 ] The A.G. submits that these two reports are “legislative facts” that can properly be tendered in evidence based on the doctrine of judicial notice. [ 8 ] “Legislative facts” consist of non-adjudicative evidence, i.e. evidence that does not relate to the guilt or innocence of the accused. Legislative facts are not specific to the circumstances of a particular case.

Instead, they are more general in nature and are usually aimed at establishing the purpose and background of legislation, including its social, economic and cultural context. [2] [ 9 ] Legislative facts may be of particular assistance to the court in constitutional challenges. For example, they may be considered in constitutional cases involving allegations of legislative overbreadth, as in the present case, "to ascertain not only the operation and effect of the impugned legislation but its true object and purpose as well". [3]

[ 10 ] Some authorities have even gone so far as to say that this type of evidence is not only helpful but necessary when a justification under s. 1 of the Canadian Charter of Rights and Freedoms (“the Charter ”) is being considered, as may occur in the present case. [4] [ 11 ] The non-adjudicative nature of legislative facts does not license the court to put aside the need to examine the trustworthiness of the materials sought to be judicially noticed. [5] In R. v.

Spence , the Supreme Court of Canada ruled that the permissible scope of judicial notice should vary according to the nature of the issue under consideration. More stringent proof may be called for of facts (whether legislative or adjudicative) that relate closely to the dispositive issue, as distinguished from background facts at or near the periphery. [6] [ 12 ] The Supreme Court noted that the non-adjudicative nature of legislative facts does not imply that they are necessarily peripheral to the disposition of the case.

In many Charter cases, for instance, the adjudicative facts relating to the guilt of the accused are admitted, and only the Charter considerations are debated. In such a situation, the legislative facts may often prove dispositive. [7] [ 13 ] When legislative facts are close to the center of the controversy between the parties, the doctrine of judicial notice provides that facts that are beyond reasonable dispute need not be proved in court by evidence under oath. They need not be tested by cross- examination.

As a result, a court may take judicial notice only of facts that are either: (1) so notorious or generally accepted that they are not debated among reasonable persons; or (2) demonstrable by resorting to readily accessible sources of indisputable accuracy. [8] [ 14 ] However, where the legislative facts are more peripheral to the dispositive issue, the required levels of notoriety and indisputability may be relaxed. 2. Application of the law in the present case

A) The CCJS report [ 15 ] The report titled “Police reported crime statistics in Canada, 2015” was prepared by the Canadian Centre for Justice Statistics (CCJS) and released by Statistics Canada in 2016. [ 16 ] According to this report, Statistics Canada has collected information on all criminal incidents reported by Canadian police services through annual surveys since 1962. The CCJS report presents statistical findings from the 2015 survey and various statistical comparisons over time.

Among other things, it presents detailed information on police-reported impaired driving rates and the total number of police-reported criminal offences involving the impaired operation of a motor vehicle in 2014 and 2015. [ 17 ] Both parties agree that the consideration of unconstitutional overbreadth includes an examination of the legislative goal of the impugned provision.

The A.G. submits that the CCJS report is relevant in that it provides context for the enactment of the impugned provision and is therefore relevant to determining its purpose. [ 18 ] The Court also notes that the CCCJS report may provide helpful contextual information for its consideration, if need be, of a justification under s. 1 of the Charter . [ 19 ] Information published by Statistics Canada is among this country’s most reliable and well-known data sources. It easily meets the criteria of “a readily accessible source of indisputable accuracy” for judicial notice.

There are numerous examples in Canadian jurisprudence where courts have admitted material from Statistics Canada in evidence under this doctrine. [9] [ 20 ] This exhibit may properly be admitted in evidence.

B) The CCMTA report [ 21 ] The report of the Canadian Council of Motor Transport Administrators (CCMTA) was prepared from information drawn from two national databases, which are compiled by the Traffic Injury Research Foundation of Canada (TIRF) and co-funded by the Public Health Agency of Canada and State Farm, a private insurance company. [ 22 ] The report states that, since 1973, the TIRF has compiled objective data on alcohol use among drivers and pedestrians fatally injured in motor vehicle crashes.

This information is obtained annually from police files as well as from coroners’ and medical examiners’ files on the results of toxicological tests. The report also examines alcohol involvement in crashes where someone was seriously injured but not killed. [ 23 ] As the consideration of unconstitutional overbreadth includes examining the legislative goal of the impugned provision, the A.G. seeks to use this report to provide contextual information on the number of deaths and serious injury crashes involving alcohol in Canada and in the Province of Quebec.

As mentioned earlier, this type of material may also provide helpful contextual information for the Court’s consideration, if need be, of a justification under s. 1 of the Charter . [ 24 ] During its arguments, the defence raised concerns over the fact that a private insurance company, State Farm, may be involved in the research that led to this report. But on closer inspection, it seems that this company’s involvement in the report was limited to co- funding it with the Public Health Agency of Canada.

The defence has not identified any reason to suspect that a private company’s financial support for the research may have had any impact on the reliability of the statistical data it yielded. [ 25 ] Also, it bears mentioning that the information the A.G. intends to refer to in the report is extremely limited, consists of statistical data, and is devoid of any opinions or sociological analysis. [ 26 ] In R. v. Seo , [10] the Court of Appeal for Ontario ruled that statistics showing a causal relationship between driving while under

the influence of alcohol and the severity of accidents as well as surveys and studies on the problem of driving after drinking should be admitted in evidence in a constitutional case, pursuant to the doctrine of judicial notice, to assist in evaluating the purpose of the impaired driving legislation. [ 27 ] The CCMTA is regularly cited by Canadian courts as the authority on numerous standards and best practices relating to the driving of motor vehicles.

Also, the Court notes that a 2006 version of “Alcohol and Drug-Crash Problem in Canada” was filed in evidence in a constitutional challenge of the Criminal Code ’s blood alcohol regime in R. c. Laforge . [11] [ 28 ] For all these reasons, the CCMTA report may properly be admitted in evidence.

FOR THESE REASONS, THE COURT RECEIVES in evidence the following reports: - “Police-reported crime statistics in Canada, 2015 ”, published in 2016 by the Canadian Centre for Justice Statistics (exhibit AGQ- 1); and - “The Alcohol and Drug-Crash Problem in Canada, 2014 Report”, published in 2017 by the Canadian Council of Motor Transport Administrators (exhibit AGQ-2). __________________________________ ANOUK DESAULNIERS, J.C.Q.

Mtre Simon-Pier Cossette Counsel for the respondent Mtre Cedric Nahum Counsel for the applicant Mtre Gaëlle Missire Mtre François Lamalice Counsels for the impleaded party Dates of hearing: March 10 and 11, 2021, and April 16, 2021