This week’s top three summaries: R v Kehler, 2021 MBQB 198: BAC #expert assumptions, R v Brown, 2021 ONSC 6612: #Charter violations after offence, and R v AS, 2021 ONCJ 493: want of #prosecution.
R v Kehler, 2021 MBQB 198
[September 14, 2021] 80 or Over: BAC Expert Evidence and Reasonable Doubt [Greenberg J.]
AUTHOR’S NOTE: Blood alcohol concentration experts are required where the Crown is outside of the time presumptions built into the Criminal Code. In this case, the evidence demonstrates a good proposition for future use. The onus on the defence is only to raise a reasonable doubt about that BAC at the time of driving. Here it was sufficient that the accused was believed that he drank alcohol after he got home. This was sufficient (without proof of how much he drank) along with it being physically possible that he could have been below the .08 at the time of driving.
Facts
[1] Frankie Kehler is charged with impaired driving, driving with a blood alcohol %1, concentration (“BAC”) over 80% and failure to stop at the scene of an accident in which the truck that he was driving struck and killed a man, Adam Sinclair, on a highway north of Winnipeg. While the Crown alleges that Mr. Kehler was impaired at the time of the accident, it is an agreed fact that even a sober driver could not have avoided the accident. Although Mr. Kehler is not at fault for causing Mr. Sinclair’s death, the Crown argues that he is criminally responsible for failing to stop to assist him.
[2] Mr. Kehler lives on a cattle farm in the Manitoba Interlake. On May 4, 2018, he and his wife went to the bar at the Moosehorn Hotel, about a half hour drive from their home, to celebrate his wife’s birthday. They spent several hours there. They left the bar 5th) at around 2:30 a.m. (on May to go home, driving south on highway 6.
[3] On May 5, 2018, Adam Sinclair was at a social in Ashern, south of Moosehorn, with his girlfriend, Sonya Sumner. They had left the social to pick up something in Fairford and were on their way back to Ashern, driving south on highway 6, when their car went off the road. Ms Sumner, who was driving the car, testified that she saw an animal on the road and, when she swerved to avoid it, she hit the gravel shoulder and lost control. The car flipped and rolled several times before coming to a stop. Mr. Sinclair was knocked unconscious and Ms Sumner’s ankle was broken. Ms Sumner said that the accident occurred at about 2:30 a.m. She managed to get out of the car and drag herself to the road to flag down a car for help. It was about 25 minutes before a truck came into sight. As it approached, she heard Mr. Sinclair yelling. He was walking up the hill of the ditch, appearing dazed. He walked onto the road waving his arms. As soon as he did, he was struck by the truck, which we now know was driven by Mr. Kehler. The truck did not stop.
[4] … Mr. El-Rennewi called 911 for help. That call was placed at 3:20 a.m. The first officer arrived at the scene five minutes later.
[5] As I said, there is no dispute that Mr. Kehler could not have avoided hitting Mr. Sinclair. By all accounts, it was very dark and Mr. Sinclair was wearing dark clothing. Ms Sumner said that you could not see anything without the benefit of car lights. According to Ms Sumner, Mr. Sinclair was struck as soon as he walked onto the road.
[7] At 4:16 a.m., Mr. Kehler called 911 from his home. He said that he thought he had struck an animal with his truck but was not sure whether it was a person.
[8] Mr. Kehler was in the house with his wife. He told the officers that he was drinking when he got home and pointed to a bottle of whiskey on the table, which was seized by the officers.
[9] ASD2 At 5:26 a.m., Cst. Fernandes had Mr. Kehler provide a breath sample for an test, which Mr. Kehler failed. Mr. Kehler was arrested for impaired driving and taken to the RCMP detachment where breath samples taken at 8:10 a.m. and 8:33 a.m. showed BAC readings of 170% and 160% respectively. The Crown led expert evidence, which I will discuss in more detail later, to extrapolate those readings back to the time of the accident. The expert opined that, assuming that Mr. Kehler did not consume any alcohol after the accident and that the accident occurred at 3:25 a.m., his BAC at the time of the accident would have been between 211% and 263%. The expert also opined that, with that blood alcohol content, a person would be moderately to severely intoxicated.
[10] As I said, that extrapolation is based on the assumption that Mr. Kehler did not drink after the accident. One of the factual disputes in this case is whether Mr. Kehler consumed alcohol after the accident and, if so, how much he consumed.
[11] Mr. Kehler testified that he and his wife arrived at the Moosehorn Bar between 9:30 p.m. and 10:00 p.m. They sat at a table with six or seven friends. Over the course of the night, he ordered several rounds of drinks, which included whiskey for his wife; spiced rum for his friend, Kenny Madison; and, Pepsi for himself. He did not consume any alcohol himself because he was the designated driver…. He struck the object, which he thought was an animal, but continued to drive home….
[12] When Mr. Kehler got home, he went straight into the house. Although he knew that the collision had damaged his truck, he did not check the damage. Mr. Kehler testified that, when he got into his house, he opened a full bottle of whiskey and started to drink. About an hour later, he went outside to check the damage to his truck and saw that there was no hair or fur caught in the grill. He then realized that the object he struck may have been a person. So he called 911 to report it.
[13] Loretta Hernandez was serving customers … She said that he ordered spiced rum and Coke for himself. She does not know how many drinks Mr. Kehler ordered but others at the table were also ordering rounds for the table. She said that Mr. Kehler was not drunk. … Ms Hernandez was not interviewed by police until 10 months after the incident. She told police that the bar was very busy that night and that she did not remember the night well.
Expert Evidence
[14] The Crown called Nancy Chan, a forensic alcohol specialist with the RCMP National Forensic Laboratory…. As I said, she opined that based on Mr. Kehler’s BAC at 8:10 a.m. and 8:33 a.m. on May 5, 2018, his BAC at 3:25 a.m. would have been between 211% and 263%. That opinion was based on the assumption that the accident occurred at 3:25 a.m. – that is to say, that Mr. Kehler was driving at that time, and that he did not consume any alcohol in the 30 minutes before the accident or between the accident and the time the breath tests were administered.
[15] … During her evidence, Ms Chan was asked for her opinion based on different assumptions as to the time of the accident (or time of driving) and based on the assumption that Mr. Kehler did consume alcohol after the accident. For example, she testified that, if Mr. Kehler was driving at 3:00 a.m. and his BAC was zero at that time, for his reading to be 160% at 8:33 a.m., he would have had to consume between 17.3 oz. and 21.3 oz. of hard liquor before police arrived at his home at 5:00 a.m….
[16] Mr. Kehler said that he opened a new bottle of whiskey when he got home and had four large drinks. That bottle was seized by police. It is an agreed fact that 500 ml, or 17.6 oz., was missing from it.
[17] Ms Chan’s opinions cannot be relied upon unless they are based on correct assumption as to the time of driving. … It is agreed that Mr. El-Rennewi called 911 at 3:20 a.m., so the accident occurred before that time, that is to say, the accident occurred some time between 2:30 a.m. and 3:20 a.m. Mr. Kehler testified that the Moosehorn bar is about a half hour drive from his home. Based on all of the evidence, it is a reasonable assumption that Mr. Kehler would have been driving his truck at around 3:00 a.m. that morning, whether the accident occurred several minutes before or several minutes after. Ms Chan testified that Mr. Kehler’s BAC at 8:33 that morning is consistent with a reading at or under the legal limit at 3:00 a.m. if he consumed at least 11.3 oz. of alcohol when he got home, before police arrived.
ISSUES
Breathalyzer
[21] Because the breath tests were administered many hours after the accident/driving, the Crown cannot rely on the presumption in s. 258(1) of the Criminal Code as to his BAC at the time of driving. The onus is on the Crown to prove beyond a reasonable doubt that Mr. Kehler’s BAC when he drove home from the Moosehorn bar was over 80%. Whether that onus has been met depends on an assessment of Ms Chan’s evidence and the assumptions on which her opinions are based.
Impaired
[22] The only evidence that Mr. Kehler was impaired at the time of driving is Ms Chan’s opinion that he would have shown signs of impairment if his BAC was over 80%. If her extrapolations as to his BAC at the time of driving cannot be relied upon, then there is no evidence of impairment.
Driving Over 80
[40] … Ms Chan’s opinions can be given no weight if the Crown has not established the assumptions on which they are based. In R. v. Saul, 2015 BCCA 149 (CanLII), Smith J.A. explained:
[37] As can be seen from the above review, the standard of proof of an underlying assumption upon which an expert’s opinion is based requires some or sufficient admissible evidence. If the evidence supports the assumption, it is then up to the trier of fact to decide how much weight to give to the opinion. Generally speaking, the more the assumption is borne out by the evidence, the greater the weight will be given to the opinion.
Impaired Driving
[46] As I cannot rely upon Ms Chan’s opinion as to Mr. Kehler’s BAC while driving, there is no evidence of impairment.
R v Brown, 2021 ONSC 6612
[October 5, 2021] Charter Remedies: Connection to the Offence [S. Nakatsuru J.]
AUTHOR’S NOTE: Although case law clearly establishes that a causal connection between a Charter violation and an offence or evidence collected is not necessary for a remedy to be fashioned in a criminal case, judges continue to be hesitant to do so. This decision provides a persuasive ruling at the Summary Conviction Appeal level demonstrating that such logic is not based in law and should be discarded. Judges have to assess the Charter violation and determine what remedy is appropriate if there is a violation.
Introduction and Background
[1] Shaune Brown was an inmate in the segregation unit at the Toronto East Detention Centre. He was convicted of assaulting two jail guards. One suffered bodily harm. Mr. Brown was convicted after a trial where he represented himself. He was sentenced to 15 months of incarceration. Mr. Brown is already doing a life sentence for second degree murder.
[3] For the following reasons, the conviction appeal is allowed.
[5] That morning, the appellant ate, showered, and then was told he would be moved from segregation and returned to general population. The appellant refused and wanted to speak to Sergeant Gardiner who the appellant claimed had given him permission to read his disclosure regarding criminal charges he was facing, in segregation. When told that Staff Sergeant Perkins was going to see him about this, he refused and insisted on talking to Sergeant Gardiner. The appellant testified that he had a bad relationship with Staff Sergeant Perkins. In addition, when the appellant got back to his cell from showering, his disclosure was scattered about his cell. Because he had made a lot of past complaints about correctional officers, the appellant believed that his disclosure was messed with that day to upset him.
[6] Staff Sergeant Perkins came to speak to the appellant. They got into an argument about the appellant leaving segregation. The appellant told Staff Sergeant Perkins to get out of his cell and pushed her on the chest. Staff Sergeant Perkins grabbed the appellant and forced him to the rear of his cell. When she did this, she testified he punched her in the right eye. Then Correctional Officer Steenson entered the cell and grabbed the appellant. A struggle ensued between the appellant and the officers. Another officer on scene, Correctional Officer Cipparone, activated a code blue button. This button alerts other officers to come help.
[7] The appellant was pressed onto a desk. The struggle continued. The appellant pushed his thumb into the eyes of the two officers. Correctional Officer Steenson repeatedly punched the appellant. The struggle ended when Correctional Officer Cipparone sprayed the appellant with pepper spray. Staff Sergeant Perkins also got sprayed. Both Staff Sergeant Perkins and the appellant suffered injuries to the face during the encounter.
[8] In response to the code blue alarm, many correctional officers rushed to the cell. At least nine other officers entered the appellant’s cell. They helped control the appellant. They picked him up and put him on the ground. He was then placed in leg irons and handcuffs and moved to another cell. Six minutes went by from the time the additional officers arrived at the time the appellant was removed from his cell.
Appellants Testimony about the Charter Violations
[9] The appellant testified in his own defence. The following is his version of what happened.
[10] After being told he had to leave segregation and complaining about the scattered disclosure, Staff Sergeant Perkins arrived. The appellant told her to leave his cell. When she came in, the appellant pushed her. He testified that she grabbed him by the throat and twisted his arm. He denied hitting her. Then Correctional Officer Steenson started punching and slapping him. The appellant had his back on the small table at the rear of the cell. A third officer came. The appellant pushed Correctional Officer Steenson into a ladder. Correctional Officer Steenson continued to punch him and grab his legs. Correctional Officer Cipparone shot pepper spray twice but missed the appellant and hit the other officers. The third shot of pepper spray hit the appellant. He could not see as a result. They continued to grapple. The appellant admitted to poking Staff Sergeant Perkins and Correctional Officer Steenson in the eye to get them off him. He testified that he was being stomped on, kicked, and punched. After some time, some body weight was on him. A boot was ground into his face. Blood came down his face. Staff Sergeant Perkins also bent back his finger. He then heard a male voice say, “enough”.
[12] The appellant was then removed from the cell and taken to another cell outside the shower. An hour later, his shackles were removed. The appellant could not see for an hour and the only way he could regain his sight was to blink the pepper spray out of his eyes. He spoke to many officers. He told them he wanted to speak to his lawyer to press charges. He was not given a call. The appellant got a fellow inmate to call his lawyer. An officer overheard this call and grabbed the phone from the inmate. The institution shut off the phone lines so no one else could call out. The appellant was in the cell for over eight hours. He was not given any food. He was refused the washroom. During this whole time, his hands were cuffed behind his back so tightly they cut into his skin and left scars. The pepper spray was burning him. After eight or nine hours, officers forced him into the shower and washed off the pepper spray and blood. The officers who cleaned his cell took his disclosure and threw most of it out. His personal belongings were taken and never returned to him.
Trial Judgement
[16] The trial judge held that most of the complaints and concerns of the appellant had occurred after the alleged assaults. He found that the violations could not affect the reception of evidence or allow for a stay because they were matters that happened after the events of the charges. He held he would consider the treatment received by the appellant on sentencing.
Argument on Appeal
[17] The appellant submits that the trial judge erred in law by categorically dismissing his Charter application on the basis that the violations occurred after the events that gave rise to the charges. The trial judge had accepted the appellant’s evidence about the extent of his injuries and treatment he received afterwards. This presumably also included the appellant’s testimony that he was subject to retaliatory stomping and kicking by officers who later entered the cell after he was pepper sprayed. Due to the trial judge’s mistaken belief that he had no jurisdiction to deal with these issues, he failed to conduct any analysis of whether the appellant’s rights were violated and what the appropriate remedy should be.
Analysis
[21] The trial judge said little about the alleged Charter violations. No analysis was conducted. No authorities were cited. What little he did say fell into serious error. The following is the sole reason given in dismissing the appellant’s application:
…But what happened to him afterwards may be grounds for a legitimate complaint under some statute or even the Charter of Rights, they are not violations that would affect the reception of evidence or allow a stay, because they are matters that happened subsequent to the events of the charge. …
[22] In my opinion, the correct interpretation of the trial judge’s reasons is plain. The trial judge is not dismissing the Charter application for the exclusion of evidence or a stay of proceedings in favour of the more appropriate remedy of a reduction in sentence. He clearly focuses on the fact that because the conduct of the correctional officers happened after the event, he did not have the “authority” to deal with them at the trial. No other part of his reasons for judgment clarifies or adds to this paragraph. In other words, resort to the whole of the reasons does not advance the respondent’s position.
[23] … The appellant submitted that his rights under ss. 7 and 12 of the Charter were infringed because of the numerous wrongful acts directed at him including: a “revenge” beating by the correctional officers before and after the code blue button was pushed; being left in handcuffs for over eight hours with his hands behind his back; not being fed or allowed to use the washroom until he was transferred to the Lindsay Jail hours later; theft of his property by the staff from his cell after he was transferred to another cell; being forced to strip and take a shower to remove the pepper spray and blood; and being denied any opportunity to press criminal charges against the correctional officers.
[25] In referring to his lack of “authority” and “jurisdiction” to deal with these alleged violations of rights because they happened after the fact, I find it clear that the trial judge was not just dismissing the appellant’s arguments as a matter of a proper remedy. Rather he concluded that in law he was unable to address the appellant’s alleged Charter violations. This was an error.
[26] Courts have ordered stays of proceedings in cases involving mistreatment in custody, including cases involving brutality on the part of correctional staff. In R. v. Bellusci, 2012 SCC 44 at paras. 17-32, the Supreme Court of Canada affirmed a stay of proceedings where a prison guard, apparently out of revenge for threats the appellant had made against him, attacked the appellant while he was handcuffed in a prison van. The appellant’s threats, though reprehensible, would not have been made but for the guard’s inappropriate disclosure to other prisoners that the appellant was a sex offender, which had jeopardized the appellant’s safety in custody. Fish J. said at para. 25, citing Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3. S.C.R. 391:
Having found that Mr. Bellusci had been provoked and subjected by a state actor to intolerable physical and psychological abuse, it was open to the trial judge to decline to enter a conviction against him. As the Court explained in Tobiass, “if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings” (para. 96).
[28] Further, trial judges can grant a stay of proceedings in other circumstances where the state misconduct came after the event leading to charges against the accused: police brutality that occurs after the accused has already been apprehended;[1] unconstitutional strip searches;[2] delay in holding a bail hearing once an accused is in custody;[3] and loss or destruction of evidence.[4]
[29] Given the error, a miscarriage of justice has occurred. I acknowledge that the trial judge made some findings of fact in favor of the appellant by accepting his evidence. Other factual findings such as what exactly transpired between the officers and the appellant are less than clear from the reasons. Additionally, no analysis was conducted on the alleged Charter violations. Consequently, on this appeal, I should not decide the question of whether a stay of proceedings should be granted. The appellant does not argue otherwise. Both parties agree that if the trial judge erred in this way, a new trial should be ordered.
R v A.S., 2021 ONCJ 493
[September 23, 2021] Dismissal for Want of Prosecution: 3 month limit on laying Information after Scheduled Appearance with no Information [Paul F. Monahan J.]
AUTHOR’S NOTE: After police arrest and release someone, they have to swear an Information and get it to court on the date of the accused’s first appearance. Failure to do so results in a loss of jurisdiction over the person. It also starts a clock on the laying of the Information pursuant to s. 485(2). Police must swear the Information within three months and issue a summons to the accused. Where they fail to do this as well, their prosecution can be dismissed for want of prosecution unless they obtained the consent of the Attorney General pursuant to s.485 (3). Here, they didn’t take the last step so their Information was dismissed.
Overview
[1] The defendant brings this application for an order dismissing this proceeding for want of prosecution pursuant to the provisions of section 485 and 485.1 of the Criminal Code.
[4] A.S. was arrested by Peel Regional Police on July 7, 2020 and released on an undertaking in form 10 from the police station with a first appearance date of September 14, 2020 at the Brampton courthouse. The undertaking indicates that it is alleged that A.S. has committed the offences of sex assault, extortion, identity theft and fraud over.
[5] On September 14, 2020, the defendant’s counsel’s agent appeared in the Brampton Ontario Court of Justice but there was no information before the court and no trace of any existing information on the Court’s database.
[6] On March 30, 2021, Peel Regional Police uncovered the fact that due to an administrative failure, no information had been laid. An information was sworn for the first time and a summons was issued compelling the applicant’s attendance. Justice of the Peace Brar issued the summons on March 30, 2021 returnable May 18, 2021.
[7] The applicant was served with the summons on March 30, 2021. On May 18, 2021, the applicant’s counsel’s agent appeared in courtroom 104 in Brampton. The matter was adjourned and this application subsequently scheduled.
Discussion and Analysis
[11] In this case, the defendant was arrested on July 7, 2020 and released on an undertaking. This release presumably occurred pursuant to the provisions of s. 498(1)(c).
[12] I have set out in the Appendix to these reasons the relevant provisions of the Code. Section 505 provides as follows:
If an appearance notice has been issued to an accused under section 497, or if an accused has been released from custody under section 498 or 503, an information relating to the offencealleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by them shall be laid before a justice as soon as practicable after the issuance or release, and in any event before the time stated in the appearance notice or undertaking for their attendance in court. (my emphasis)
[13] Section 508 contemplates that an information will be placed before a Justice under section 505 and the Justice will either confirm the appearance notice or undertaking and endorse the information or cancel the appearance notice or undertaking and issue a summons or warrant.
[14] The Ontario Court of Appeal in R. v. Ladouceur 2013 ONCA 328 at paragraph 18 had this to say about the failure to comply with the time limit for the laying an information under section 505:
In the event of a failure to comply with the time limit for laying an information under section 505, the law is well settled that the promise to appear is defective and non-compliance with section 505 provides a complete defence to a charge of failure to appear as directed by the promise to appear. However, the defect does not affect the validity of the information. In a nutshell, jurisdiction is lost over the person but not over the offence; that is, the validity of the information survives a defect in the process. See R. v. Naylor (1978), 1978 CanLII 2371 (ON CA), 42 C.C.C. (2d) 12 (Ont. C.A.) and R. Markovic (2005), 2005 CanLII 36251 (ON CA), 200 C.C.C. (3d) 449 (Ont.C.A.) (my emphasis).
[15] The Court of Appeal made a similar point at paragraph 19 of Ladouceur when it said “a failure to conform to the requirements of section 508 results in a defect in the process and a loss of jurisdiction over the person” (my emphasis).
[18] In Markovic and Ladouceur there were losses of jurisdiction over the person, but these were remedied when the person attended court, and this was done within days after the loss of jurisdiction (see for example Ladouceur at para. 31). Neither of these cases addressed the role of s. 485 when there is a loss of jurisdiction over the person nor do they address a situation like here where the information is sworn more than 6 months after the return date on the undertaking.
[19] … The Crown/police could have remedied that loss of jurisdiction by having an information sworn and summons issued (or warrant) within three months of the loss of jurisdiction thereby complying with the provisions of s. 485(2).
[20] I note that s. 485(2) specifically refers to a loss of jurisdiction “over an accused or defendant”. In my view, the Crown finds itself squarely within s. 485(2) and they have failed to comply with it.
[23] I adopt as correct the decision of my colleague Justice Mara Greene in R. v. Ferriera 2014 ONCJ 617. In that case, there no was information in the Court at the time of the first appearance either because it was mislaid or did not exist. The accused heard nothing for a year after the first appearance date when they received a summons. Justice Greene held that s. 485 gave rise to a deemed dismissal as there was no summons issued within 3 months after the loss of jurisdiction.
[24] In my view, there was a loss of jurisdiction over A.S. in this case on September 14, 2020 because there was a failure to comply with s. 505 as no information was sworn before the return date on the undertaking. The Crown then failed to comply with s. 485 (2). In my view, section s. 485 (3) operates to deem a dismissal for want of prosecution .
[25] The option for the Crown is to seek the consent of the Attorney General or the Deputy Attorney General to the laying of a new information. In the circumstances, there will be dismissal of the charges on the information sworn in March 2021.
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