) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 6866

CITATION : R. v. Tidey, 2017 ONSC 6866 COURT FILE NO.: 1329/13 DATE: 20171116 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – ANDREW CATHEW TIDEY Applicant ) ) ) ) ) ) ) ) Sarah Repka, for the Crown David R. Newton, for the Applicant/Appellant ) ) HEARD: June 12, 2017 wOODLEY, J: REASONS FOR judgment on

summary conviction appeal [ 1 ] The Appellant was charged with operating a motor vehicle while impaired by alcohol and with refusing a demand for a breath sample, contrary to sections 253(1) (

a) and 254(3) and (5) of the Criminal Code of Canada , respectively [ 2 ] The Appellant also faced a Provincial Offences Act charge of driving under a suspended license contrary to section 53(1) of the Highway Traffic Act. The Crown elected to proceed summarily on both Criminal Code charges. The trial was conducted before the Honourable Justice Cameron. The Appellant was unrepresented in this matter at trial.

Background [ 3 ] The Appellant’s trial proceeded before the Honourable Justice Cameron of the Ontario Court of Justice in Lindsay on December 10, 2016 and January 7, 2017. [ 4 ] On January 7, 2015, the Appellant and the Crown made closing arguments and the matter was adjourned to February 4, 2016 for Judgment. [ 5 ] After the matter was adjourned and following the period that the Appellant left the court house, the Crown requested leave to readdress the matter in the Appellant’s absence. [ 6 ] The trial Judge gave leave for the matter to be addressed. [ 7 ] The Crown made further submissions and the charge of driving while impaired was dismissed. [ 8 ] On February 4, 2015, the Appellant was convicted of driving under a suspended licence and refusing a demand for a breath sample.

Sentencing proceeded immediately. For driving under a suspended license, the Appellant was fined $1,000. For refusing a demand for a breath sample, the Appellant was fined $1,000 and received a 12-month licence suspension. [ 9 ] The Appellant appeals against his conviction for refusing a demand for a breath sample. The grounds for the appeal are: i. The Appellant was excluded from a portion of his trial that affected his vital interests in violation of section 650(1) of the Criminal Code of Canada ; ii. The trial Judge erred in rejecting the Appellant’s evidence so as to allow a conviction; iii.

The evaluation of the evidence by the trial Judge was flawed and led to an unreasonable verdict; and

iv. The trial Judge erred in finding there were reasonable grounds for making the demand for the breath samples. Facts [ 10 ] I have reviewed the various documents filed on this appeal including the transcripts of the proceeding held on December 10, 2014, January 7, 2015, and February 4, 2015. [ 11 ] I note that the Crown submitted at trial that the “grounds were adequate in all the circumstances”.

More specifically, the Crown noted that the arresting officer’s explanation for stopping the Appellant was an “aggressive stop and pause at the light”. [ 12 ] I further note that after all evidence, including evidence supporting the reasonable and probable grounds for stopping the Appellant were received by the court that the matter was adjourned to February 4, 2015, for judgment. [ 13 ] The transcript of the conclusion of the proceedings that included the Appellant read as follows: THE COURT: Okay? Alright, so the first February is February the 4 th .

So February the 4 th in Minden, courtroom number 9 for 9:30 for a decision. And, Mr. Peters, I take it a colleague will be – MR. PETERS: Yes, they will and that’s fine. Your Honour. THE COURT: Thank you. MR. PETERS: Thank you. MR. TIDEY: Okay, thank you, Your Honour. Thank you. THE COURT: You’re welcome, Mr. Tidey. [ 14 ] After the Appellant had vacated the court house, Crown counsel requested leave to readdress the matter. The trial Judge granted leave to do so. [ 15 ] The transcript of the proceedings that were conducted in the absence of the Appellant are as follows: MR.

PETERS: With regard to the Tidey matter I wonder if I might have leave to address the matter in his absence. I just wanted to speak to you about the impaired count. THE COURT: Yes. MR. PETERS: It’s just had it – having had a chance to think a little bit more about that part of the case which I hadn’t focused my energies on since our last meeting and listening to your comments, frankly I don’t’ think at the end of the day the Crown’s going to get over the hurdle in terms of proof beyond a reasonable doubt that he was impaired. And I’m wondering if you would accept my invitation to dismiss that count at this time.

THE COURT: Yes. MR. PETERS: All right. THE COURT: I will accept your invitation. MR. PETERS: Thank you. I just should put on the record, our view was that the officer had grounds to do what he did in terms of the arrest but all of the evidence when added up just simply doesn’t’ get the Crown over the hurdle. THE COURT: I would agree. MR. PETERS: Thank you and I’ll send a letter to Mr. Tidey at the address noted on his release to advise him of the same. THE COURT: Thank you. MR. PETERS: Okay thank you, Your Honour. COURTROOM REGISTRAR: Should I note it dismissed as of today, Your Honour? MR.

PETERS: I’m in – I’m in Your Honour’s hands. THE COURT: Yes we can do that. [ 16 ] On February 4, 2015, the Appellant was found guilty of refusing to blow and of driving with a suspended license. [ 17 ] With regard to the overall facts, the trial Judge found that the decision to arrest “was somewhat precipitous. There was very limited evidence of [the Appellant’s] behavior that might be proof of impairment.” The Test on a

Summary Conviction Appeal

[18] Section 686(1)(

a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court mayallow the appeal where it is of the opinion that: (

a) The verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; (

b) The judgment of the trial court should be set aside on the ground of wrong decision on a question of law; or (

c) On any ground there was a miscarriage of justice. [19] Unless the record reveals an error of law or in principle or a clear and manifest error in the appreciation of the evidence, thereis no basis for appellate intervention. Issue #1: Was the Appellant’s Right to a Fair Trial Violated? [20] Among other grounds of appeal, the Appellant submits that his right to a fair trial was violated in breach of fundamentaljustice and an element of

section 7 of the Canadian Charter of Rights and Freedoms that an accused has the right to a full answer anddefence. [21] The Appellant submits that the Supreme Court of Canada held in R. v. Stinchcombe that this right is “one of the pillars ofcriminal justice”. The Appellant further submits that making informed submissions constitutes an element of making full answer anddefence. Further, it is the trail judge’s responsibility to ensure that an accused gets a fair trial, especially in a case, such as the present,where the accused is unrepresented. [22] The Ontario Court of Appeal in R. v.

Dayes, 2013 ONCA 614, held that “the default position in all criminal trials is that anyconversation involving trial counsel and the judge ought to take place in the Appellant’s presence,” and further that “a discussion…about the possible resolution of charges against an accused engages his vital interests where…the trial judge expresses an opinion aboutthe Crown’s evidence.” (See R. v. Stinchcombe, (SCC), [1991] 3 S.C.R.326, at 17; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at 25; and R. v.

Dayes, 2013 ONCA 614, AT 68, 70). [23] As noted above, on January 7, 2015, following final submissions and after adjourning the matter to February 4, 2015, theCrown requested that the trial Judge permit him to re-address the Appellant’s matter in the absence of the Appellant. [24] The trial Judge permitted the Crown to re-address the Appellant’s matter in the absence of the Appellant. [25] Had the Crown limited their submissions to advising the trial Judge that they were withdrawing the Driving While ImpairedCharge, the result may have differed. [26] However, Crown did not limit their submissions to the withdrawal of a charge but added the following statement: MR.

PETERS: Thank you. I just should put on the record, our view was that the officer had grounds to do what he did in terms of thearrest but all of the evidence when added up just simply doesn’t’ get the Crown over the hurdle.

THE COURT: I would agree. [27] This exchange between the Crown and the trial Judge affected the Appellant’s vital interests. [28] Although not initiated by the trial Judge - the granting of permission to re-address the Court in the absence of the Appellantfor a limited purpose evolved into a discussion of the strength of the evidence and the grounds for the arrest that led to the breathdemand. [29] By allowing the Crown to re-address the court in the absence of the Appellant the court found itself on a merry go round thatit could not control. [30] The end result is that the Crown was provided with an opportunity to make further submissions on the strength of theevidence for one of the charges against the Appellant and on the strength of the grounds for the arrest that led to the breath demand –and the Judge received the submissions and vocalized an opinion. [31] The Appellant’s right to a fair trial was fatally compromised. [32] The curative provisions of the Criminal Code found at section 686(1)(b)(iv) are not engaged as they apply only where theaccused suffers no prejudice. [33] Referring to the test for the application of the curative provision as established by the Ontario Court of Appeal in R. v.

Simon,2010 ONCA 754, at para 123, I note as follows: i. The nature and extent of the Appellant’s exclusion was not inadvertent. Although theexclusion was also not seemingly deliberate there appears to be no reason that the request to withdraw the impaired charge could nothave simply come in the form of a letter sent simultaneously to the Appellant and the court. ii. Defence counsel initiated the exclusion of the Appellant; iii.

Although the conversation was recorded on the record the Appellant was not provided with acopy of the transcript until sometime following the finding of guilt on the failure to blow charges; iv. The discussion which occurred in the Appellant’s absence involved substantive matters –

including matters that determined the ultimate findings by the trial Judge; v. The discussions completely breached the apparent fairness of the trial proceedings; vi. The Appellant had no remedy to deal with the discussions as he was not provided with a transcript of the matters discussed until following final judgment. [ 34 ] In accordance with the test in Simon , the Appellant suffered prejudice from the conversation that was conducted in his absence.

In the circumstances, I find that the Appellant’s right to a fair trial was fatally breached by the submissions made by the Crown in the absence of the Appellant. [ 35 ] In the circumstances, I hereby Order that the Appeal is granted and the conviction for refusing to blow is quashed and an acquittal entered. Conclusion [ 36 ] For the reasons given, the appeal is granted, the conviction for refusal to blow is quashed and an acquittal is entered. _____________________________________________ Justice S. J. Woodley Released: November 16, 2017 CITATION : R. v.

Tidey, 2017 ONSC 6866 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANDREW CATHREW TIDEY REASONS FOR JUDGMENT Justice S.J. Woodley Released: November 16, 2017