R v Robertson, 2021 SKCA 125

Court of Appeal for Saskatchewan Docket: CACR3329 Citation: R v Robertson , 2021 SKCA 125 Date: 2021-09-22 Between: Shawn William Robertson Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Caldwell JJ.A. Disposition: Appeal allowed; acquittals restored Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit On appeal from: 2019 SKQB 330 , Yorkton Appeal heard: May 12, 2021 Counsel: Rhiannon F.L. Montgomery for the Appellant Jennifer Souter for the Respondent Caldwell J.A. I.

INTRODUCTION [ 1 ] Shawn William Robertson seeks to appeal, pursuant to s. 839 of the Criminal Code , against the decision of the

summary conviction appeal court judge [appeal judge] in R v Robertson , 2019 SKQB 330 [ Appeal Decision ], overturning the acquittals entered in the Provincial Court ( R v Robertson (11 May 2018) Yorkton, CRIM 12/18 (Sask Prov Ct) [ Trial Decision ]) and convicting Mr. Robertson of impaired driving, contrary to s. 253(1) (

a) of the Criminal Code , and of driving while his blood alcohol content exceeded .80mg/100ml, contrary to s. 253(1) (b). [ 2 ] Mr. Robertson has established that his appeal raises a question of law that is both significant to the administration of justice generally and compellingly meritorious in the particulars of his case and, therefore, I would grant leave to appeal. In the result, I would allow his appeal, set aside the convictions, and restore the acquittals entered by the Provincial Court judge [trial judge]. II. BACKGROUND [ 3 ] Although this appeal concerns Mr.

Robertson’s right not to be arbitrarily detained under s. 9 of the Charter , the circumstances of his arrest are relevant only for narrative purposes. Rather, it is the procedural background that raises a question of law that is significant to the administration of justice generally. A. Circumstances of arrest [ 4 ] At 2:55 a.m. on October 14, 2017, an RCMP constable [arresting officer] observed a vehicle driving on the wrong side of a highway and then over a raised meridian to get onto the correct side. The arresting officer turned around, followed the vehicle, pulled it over and identified Mr.

Robertson as the driver. At roadside, she observed Mr. Robertson having difficulty retrieving his registration and to have “pinpoint pupils” and “glassy eyes”. She detected an odour of alcohol as well. The arresting officer asked Mr. Robertson if he had had anything to drink to which he responded “no”. Given all these observations, she arrested Mr. Robertson for impaired driving contrary to s. 253(1) (

a) of the Criminal Code . [ 5 ] After arresting him, the officer escorted Mr. Robertson to her police car, placed him in the back and advised him of his right to counsel. During this activity, she noted that he had difficulty walking. However, the arresting officer then “second guessed” herself as to whether she had pulled over the correct vehicle—i.e., she wondered whether Mr. Robertson’s vehicle was the same one she had seen cross the meridian. She was also concerned that, because he said he had had nothing to drink, Mr. Robertson might be in some sort of medical distress unrelated to alcohol consumption.

To address these questions, the arresting officer made a demand under s. 254 of the Criminal Code and tested Mr. Robertson’s breath on an approved screening device [ASD]. When his second attempt produced a fail reading, the officer re-arrested Mr. Robertson for impaired driving and again advised him of his right to counsel. The arresting officer thereafter transported him to an RCMP detachment where he submitted to two Intoxilyzer tests. His blood alcohol content was over twice the legal limit on both occasions. This led to the charge under s. 253(1) (

b) of the Criminal Code . B. Voir dire and trial at Provincial Court [ 6 ] Prior to trial, Mr. Robertson filed an application alleging that his rights under ss. 8, 9, and 10(

b) of the Charter had been violated in the circumstances of his arrest and ASD demand. As such, the matter proceeded by way of a blended voir dire and trial at

which the arresting officer was the only witness. At the outset of the proceeding, the Crown conceded that Mr. Robertson had beenarbitrarily detained in the circumstances of his first arrest. Specifically, the Crown conceded that the arresting officer had not held, at thetime of that arrest, a subjective belief that Mr. Robertson was impaired by alcohol. The Crown reiterated its concession after the arrestingofficer testified that she had, throughout her investigation, believed that Mr. Robertson was impaired by alcohol. [7] The trial judge noted that the evidence contradicted the Crown’s concession.

However, he ruled, based on the concession, thatss. 8 and 9 of the Charter had been breached. The trial judge then proceeded to address the breaches under s. 24(2) of the Charter. TheCrown argued that the s. 9 breach was merely technical and did not warrant exclusion of the evidence. The trial judge saw it differently,concluding that, although the arresting officer’s actions had not been malicious, she had acted deliberately and had thereby seriouslybreached ss. 8 and 9 of the Charter. By way of remedy, he excluded the evidence of the ASD fail and the certificate of analysisevidencing the Intoxilyzer results.

Without that evidence, the Crown could not prove its case against Mr. Robertson and, therefore, thetrial judge acquitted him of all charges. C.

Summary conviction appeal at the Court of Queen’s Bench [8] The Crown appealed against the acquittals pursuant to s. 813(b)(

i) of the Criminal Code, seeking to resile from its position attrial that s. 9 of the Charter had been breached. The Crown argued that what it had conceded at trial was an error of law and, therefore, itought to be able to withdraw its concession. The appeal judge agreed, ruling that a concession as to the law does not bind a trial court orthe

summary conviction appeal court. [9] Having so ruled, the appeal judge rejected Mr. Robertson’s argument that the question of breach of s. 9 of the Charter was anew issue raised on appeal. He observed that it had been argued before the trial judge and that the evidentiary record was adequate toanswer the question.

Accordingly, the appeal judge proceeded to review the arresting officer’s testimony with a view to assessing thecorrectness of the trial judge’s finding that the circumstances of arrest had breached s. 9 of the Charter. [10] In the result, the appeal judge determined the trial judge had erred by finding that the arresting officer had not held a subjectivebelief that Mr. Robertson was impaired. Based on his review of her testimony, the appeal judge held that Mr. Robertson’s ss. 8 and 9Charter rights had not been violated.

This led him to conclude there was no basis to exclude the ASD result and the certificate of analysis.With that evidence and the arresting officer’s observations, the appeal judge found that the Crown had proven beyond a reasonable doubtthat Mr. Robertson had been impaired by alcohol and that he was guilty of the offence under s. 253(1)(

a) of the Criminal Code. Theappeal judge quashed the acquittals under ss. 253(1)(

a) and (

b) and entered convictions. He then remitted the matter of sentencing to theProvincial Court. [11] Although the appeal judge had found no Charter breaches, he reviewed the trial judge’s analysis under s. 24(2) of the Charter,concluding that the trial judge had erred when applying R v Grant, 2009 SCC 32, [2009] 2 SCR 353, and had overstated the seriousness ofthe breaches he had found. As an aside, the appeal judge also denied Mr.

Robertson’s application, which was made on the basis of R vGarcia (2005), (ON CA), 194 CCC (3d) 361 (Ont CA), for an award of costs against the Crown as a sanction for itswithdrawal of the concession on appeal. III. ANALYSIS [12] In this second-level appeal, Mr. Robertson chiefly submits that the appeal judge erred in law by allowing the Crown towithdraw its concession that s. 9 of the Charter had been breached.

While he also questions the appeal judge’s handling of the trial judge’ss. 24(2) analysis, there is no need to address that ground in any detail. [13] In the hearing of this appeal, the Crown argued that it was irrelevant whether its concession was an admission of fact or aconcession as to a point of law because nothing of substance in the appeal turned on that question. I disagree. [14] In addressing Mr.

Robertson’s principal argument, I will begin by stating that the appeal judge correctly concluded that nocourt is bound by concessions of law, whether made by the Crown or an accused (Appeal Decision at paras 34–37, citing Ocean PortHotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at para 44, [2001] 2 SCR 781; M.v H., (SCC), [1999] 2 SCR 3 at para 45; R v Silveira, (SCC), [1995] 2 SCR 297 at para 100; R vElshaw, (SCC), [1991] 3 SCR 24 at 48; R v Canadian Broadcasting Corp., 2004 SKQB 320 at para 23, [2005] 3 WWR77, leave to appeal to SCC refused, ; R v Lewis, 2019 ABCA 311 at paras 10 and 11, 443 CRR (2d) 42; and,inferentially, R v Barton, 2019 SCC 33 at para 96, [2019] 2 SCR 579). [15] However, the Crown’s concession was not a concession of law; it was an admission of fact. [16] It is important to place the Crown’s “concession” in the context in which it was given.

Mr. Robertson had applied for adetermination that his Charter right not to be arbitrarily detained had been violated in the circumstances of his arrest. Because his arrestwas without warrant, the legality of it depended on whether the arresting officer had reasonable grounds to believe that Mr. Robertson wasdriving while impaired (Criminal Code, ss. 253(1)(

a) and 495). That means the arresting officer had to subjectively believe that Mr.Robertson was impaired when she arrested him and her belief had to be rationally sustainable on an objective basis (see R v Gunn, 2012SKCA 80 at para 7, [2013] 1 WWR 495; R v Bernshaw, (SCC), [1995] 1 SCR 254 at para 48).[1] Because only thearresting officer knew whether she had held the requisite belief and what factors had informed that belief, it fell to the Crown to prove thelegality of the arrest through her testimony, even though Mr.

Robertson bore the onus in his application of establishing an infringement ofhis Charter right (R v Gunn; R v Besharah, 2010 SKCA 2, 343 Sask R 202; R v Collins, (SCC), [1987] 1 SCR 265). [17] However, in anticipation of her testimony, the Crown conceded that the arresting officer had not held a subjective belief ofimpairment and, therefore, that Mr. Robertson had been arbitrarily detained. She later testified to the contrary but the Crown maintained itsconcession.

This means the Crown admitted that the arresting officer’s testimony would not and later did not support finding as a factsomething that was essential to the legality of Mr. Robertson’s arrest.

[18] In this circumstance, it cannot be said that the Crown’s concession somehow misled the trial judge as to the legal requirementsof an arrest without warrant or as to the legal nature of the Charter right not to be arbitrarily detained. Rather, it was undoubtedly theCrown’s admission of a fact that led the trial judge, under his correct

interpretation of the law, to the legal conclusion that s. 9 of theCharter had been breached. The Crown’s “concession”, therefore, was comprised of an admission of fact and the Crown’s opinion that,under the law of detention and arrest, that fact meant Mr. Robertson had been arbitrarily detained contrary to s. 9 of the Charter.

As such, Ifind the appeal judge erred when he concluded the Crown had conceded a point of law. [19] Since the Crown bears the onus of proof in criminal proceedings, s. 255 of the Criminal Code contemplates admissions of factbeing made by an accused for the purpose of dispensing with proof thereof (see R v Castellani, (SCC), [1970] SCR 310).However, the Criminal Code does not preclude the Crown from admitting facts that favour an accused for the purpose of dispensing withproof thereof.

Nor does it or the Canada Evidence Act, RSC 1985, c C-5, preclude the application of the common law principles ofevidence in that regard (Criminal Code, s. 8(2); Canada Evidence Act, s. 40). [20] Under common law, the Crown’s admission of fact was binding on the trial judge. Indeed, although the trial judge remarkedthat it was contradicted by the evidence, he acted on the admission of fact, as he was required to do. Speaking to this in Champoux vJefremova, 2021 ONCA 92, Hourigan J.A. wrote: [34] A trial judge has the freedom to interpret what an admission [of fact] means: Allto Construction Services Ltd. v.

Toronto andRegion Conservation Authority, 2017 ONCA 488, at para. 11. But that interpretive exercise cannot morph into an analysis of the veracityof the admission. A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formaladmission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidencecontradicts the admission: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 106.

See also Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at 1387, where the learnedauthors summarised the relevant common law of evidence as follows: …Formal admissions made for the purpose of dispensing with proof at trial are conclusive as to the matters admitted. As to these matters,other evidence is precluded as being irrelevant but, if such evidence is adduced, the court is bound to act on the admission even if theevidence contradicts it. … [21] As noted, admissions dispense with the need for formal proof at trial of a particular fact.

Under common law, an admission offact cannot be withdrawn except with consent of the party in whose favour it was made or with leave of the trial court (see Finn v St.John’s (City), 2005 NLCA 17, 731 APR 13 [Finn]).

Axiomatically, given the nature of a trial and the effect of an admission, it is the trialcourt, as the trier of fact, that must ultimately determine whether an admission of fact may be withdrawn. [22] On this basis, I find it was not open to the Crown to seek to withdraw its admission of fact on appeal from the Trial Decision.As the Court in Finn concluded, “[t]o permit the withdrawal of the admission on appeal would undermine completely the whole reason foradmissions and place the opposing party or parties, as well as the trial judge, in an impossible position” (at para 26).

It stands to reasonthat, if litigants were permitted to withdraw admissions of fact on appeal, opposing parties would always have to prove, or hold theadmitting parties to prove, those facts at trial. This would render admissions meaningless from the outset. [23] Moreover, I see no reason why this tenet of the common law of evidence should not apply equally to the Crown and accused incriminal appeals. Indeed, there are greater reasons to adhere to this tenet in criminal proceedings.

For example, if the Crown werepermitted to withdraw admissions of fact when appealing against an acquittal, an appeal could become tantamount to a second trial ondifferent facts, thereby giving rise to questions of trial fairness and invoking the rights protected by the plea of autrefois acquit and bys. 11(

h) of the Charter. [24] Accordingly, I conclude the appeal judge erred in law when he permitted the Crown to withdraw on appeal what was anadmission of fact made and not withdrawn at trial. As the error led the appeal judge to displace the trial judge’s findings of breach, thosefindings must be restored. While the appeal judge also found error in the trial judge’s s. 24(2) Charter analysis, he did so by assessing thearresting officer’s evidence afresh, which is not permitted (R v Grant at para 129).

Lastly, in part because this Court is also bound by theCrown’s admission, I conclude there is no basis to interfere with the findings of the Charter breach or with the remedy granted by the trialjudge under s. 24(2) of the Charter. IV. CONCLUSION [25] In short, I would grant leave to appeal and allow the appeal. In the result, I would set aside the Appeal Decision, quash theconvictions entered by the appeal judge, and restore the acquittals entered by the trial judge. “Caldwell J.A.” Caldwell J.A.I concur. “Jackson J.A.” Jackson J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.