The Defence Toolkit – April 9, 2022

This week’s top three summaries: R v Adeyiwola, 2022 ONSC 1824: #impaired circumstantial ev., R v Jobb, 2022 SKQB 47: #impaired late #disclosure stay, and R v Akhi, 2022 ONCA 264: #co-accused trial instructions

This week's top cases deal with impaired driving issues. For a more detailed reference on the law in this area, I recommend the Emond title below. For a limited time, it is available for purchase for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Adeyiwola, 2022 ONSC 1824

[March 28, 2022] Impaired Driving and Villaroman - Charter s.10(b)/24(2) First two prongs favouring exclusion [Justice J.R. Henderson]

AUTHOR’S NOTE: This case provides a very clear example of how Villaroman circumstantial evidence analysis applies to impaired driving cases. Even on summary conviction appeal, the failure of the trial judge in this matter to consider reasonable alternative inferences beyond impairment by alcohol resulted in an overturned conviction and a new trial. Here, the considered observations included leaving a nightclub, accelerating quickly out of the parking lot, weaving within the vehicle's own lane, failure to stop immediately for emergency lights, an odour of alcohol from the breath, tired and watery eyes, slow speaking, admissions of consumption of 2-3 drinks, urination at the roadside, and leaning on the vehicle for balance. However, the judge failed to consider that the temperature was -6 Celsius and there was evidence it was raining as a possible explanation for many of these observations. The case also involved a s.10(b) breach by continuing discussions with the accused having failed to give him an opportunity to exercise his right to speak with counsel. The 24(2) analysis appeared muddled and appeared to state the first two prongs favoured exclusion and still included the evidence - this was overturned per McGuffie on appeal. 

Overview

[1]  This is the appellant’s appeal from his convictions on October 29, 2021, by Robinson J. in the Ontario Court of Justice on the charges of (1) operating a motor vehicle while his ability to operate it was impaired by alcohol (“the Impaired Driving Charge”), and (2) operating a motor vehicle with blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood (“the Over 80 Charge”).

Facts

[3] On January 24, 2019, the appellant was observed operating a motor vehicle at approximately 2:00 a.m. by Officer Damiano and Officer Krieger. The two police officers observed the appellant’s vehicle leave the Sundowner Nightclub in the City of Niagara Falls, accelerate quickly out of the parking lot and then weave within the vehicle’s own lane on the roadway.

[4]  The police officers activated the police cruiser’s emergency lights, but the appellant did not stop his vehicle immediately. Instead, the appellant continued driving until he brought his vehicle to a stop either 200 metres or 500 metres further down the road.

[5]  Officer Damiano, the primary investigator, approached the appellant’s vehicle. He testified that there was an odour of alcohol coming from the appellant’s breath and that the appellant’s eyes were tired and watery. He observed that the appellant spoke slowly with a Nigerian accent. The appellant told Officer Damiano that he had consumed two or three alcoholic drinks at the Sundowner.

[6]  Officer Damiano formed the grounds to arrest the appellant, but he returned to the police cruiser to consult with Officer Krieger, who was the more senior officer, before doing so. As Officer Damiano was returning to the police cruiser, the appellant, contrary to instructions from Officer Damiano, exited his vehicle, walked beside his vehicle, and urinated on the roadside. Officer Damiano observed that the appellant leaned on his vehicle for balance.

[7]  Officer Damiano arrested the appellant at 2:18 a.m ... informed him that he had the right to retain and instruct counsel without delay. Immediately thereafter, the appellant invoked his rights by indicating that he wished to speak with a lawyer.

[8]  Thereafter, Officer Damiano questioned the appellant about the charges. The appellant confirmed that he had consumed two or three alcoholic drinks. The appellant at all times was polite and cooperative.

Impaired Driving

[10] In the first ground of appeal, counsel for the appellant submits that the trial judge erred by failing to consider the circumstantial evidence of impairment in the manner required by the decision in R v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[11] In Villaroman, the Supreme Court of Canada addressed the appropriate way to consider whether the Crown has proved its case beyond a reasonable doubt when one or more elements of the offence depends exclusively or largely on circumstantial evidence. The court held that, in order to convict, a trial judge must be satisfied that an inference of guilt is the only reasonable or rational inference that can be drawn from the circumstantial evidence. See Villaroman at paras. 30 and 41.

[13] The standard of review on appeal with respect to a conviction based entirely upon circumstantial evidence is whether the trial judge, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable or rational conclusion that was available on the totality of the evidence. See Villaroman at para. 55.

[15]  Specifically, the trial judge relied upon the evidence that the appellant’s vehicle picked up speed quickly, that the vehicle swerved within its own lane, that the vehicle did not stop immediately, that there was a smell of alcohol coming from the appellant’s breath, that the appellant spoke with slow speech, that the appellant had tired and watery eyes, that the appellant acknowledged consuming alcohol, that the appellant was slightly unsteady on his feet, and that the appellant leaned on his vehicle for support while urinating.

[16]  I agree with appellant’s counsel who submitted that, in conducting this analysis, the trial judge did not consider some of the evidence that was consistent with the appellant’s innocence. That is, the trial judge did not consider some of the plausible theories and reasonable possibilities that are inconsistent with the appellant’s guilt.

[17]  In particular, the trial judge appeared to rely in part upon the appellant’s slow speech as evidence of impairment, but the trial judge did not consider whether the appellant’s pattern of speech was a result of his Nigerian accent.

[18]  Further, the trial judge did not fully consider the appellant’s explanation given to Officer Damiano that the appellant did not stop his vehicle immediately because it was raining....

[19]  Significantly, the trial judge did not fully consider whether the inclement weather explained some of the evidence of apparent impairment upon which the trial judge based the conviction. The evidence was that the temperature was -6° Celsius and raining. Common sense would suggest that any rain at that temperature in January would be freezing rain, or at least some form of icy precipitation. Common sense would also suggest that there was a reasonable possibility that the roadway was slippery.

[20]  In her reasons, the trial judge referred to the weather and accepted that it was rainy and wet. However, the trial judge did not make any finding as to whether the roadway was slippery or not. The trial judge simply referenced Officer Damiano’s testimony that he had no trouble driving and that he did not find the road to be slippery. I note that Officer Damiano testified that he did not recall if it was freezing rain.

[21] ... the trial judge should have then considered whether the slipperiness of the roadway was a plausible innocent explanation for the modest swerving of the vehicle within its own lane.

[22]  Furthermore, slippery road conditions should also have been considered with respect to the appellant’s apparent unsteadiness on his feet while he was urinating. Is it plausible that the appellant leaned on his vehicle for balance because the roadway was slippery? In that respect, the trial judge should also have considered the evidence that the only time that the appellant exhibited any unsteadiness on his feet was while he was urinating at the roadside.

[23]  In summary, I find that the impaired driving conviction in this case was based entirely upon circumstantial evidence. Therefore, a fulsome Villaroman analysis was required from the trial judge. Although the trial judge relied upon several pieces of evidence that were consistent with the appellant’s guilt, I find that the trial judge did not consider other plausible theories and other reasonable possibilities that were consistent with his innocence.

[24]  Therefore, I find that the trial judge, acting judicially, could not reasonably be satisfied that the only reasonable or rational conclusion on the totality of the evidence was that the appellant was guilty of impaired driving.

[25]  For these reasons, I will allow the appeal regarding the Impaired Driving Charge and set aside that conviction.

The Over 80 Charge

[37]  The fourth ground of appeal also relates to the Over 80 Charge and the Charter. At trial, the Crown and defence counsel agreed that there had been a breach of the Charter as the appellant had invoked his right to retain and instruct counsel at approximately 2:27 a.m. by telling the police officers that he wished to speak with a lawyer. However, thereafter, Officer Damiano started to question the appellant about the charges prior to giving the appellant an opportunity to consult with a lawyer. The trial judge referred to this as the “hold off” breach.

[38]  On this appeal, counsel for the appellant submits that the trial judge erred by failing to conduct a proper s.24(2) analysis with respect to this hold off breach, and therefore wrongly permitted the results of the breath analysis to be admitted as evidence at the trial.

[40]  Regarding the seriousness of the Charter-infringing conduct, the trial judge simply stated that police officers have been told since 1994 to hold off questioning the accused until the accused speaks with counsel or waives that right. The trial judge said nothing more about the seriousness of the Charter breach and thus it is unclear what conclusion was reached by the trial judge on this point.

[41]  Regarding the impact of the breach on the Charter-protected interests of the accused, the trial judge seemed to conclude that the impact was significant as the trial judge indicated the implementation of s.10(b) rights was fundamental in a civilized society. The trial judge stated that the right to counsel goes beyond the accused to some extent. The trial judge then indicated that there was no causal connection between the breach and the breath samples, and that the absence of a connection mitigated the impact of the breach. Again, it is unclear whether the trial judge concluded that the impact was significant or not.

[43] I accept the submission from appellant’s counsel that, although it is not obvious, the reasons of the trial judge could fairly be interpreted to mean that the trial judge found that the first two prongs of the Grant test favoured exclusion of the evidence. If that is the case, prior decisions from the court of appeal suggest that the third prong of the Grant test should not tip the balance in favour of admissibility.

[44] As was stated in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643 at para. 63, “In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence … If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”

[45] In summary, on this fourth ground, I find that there are problems with the trial judge’s s.24(2) analysis as it is difficult to understand the conclusions reached by the judge on the first two prongs of the Grant test. I also accept that, on its face, the trial judge’s analysis could be interpreted to mean that the breath analysis evidence should have been excluded.

[46] For these reasons, I find that the fourth ground of appeal raised by the appellant is a valid one. I will therefore allow the appeal regarding the Over 80 Charge and set aside that conviction.

[48] Accordingly, I hereby set aside the convictions on the Impaired Driving Charge and on the Over 80 Charge. There will be a new trial on both charges.

R v Jobb, 2022 SKQB 47

[February 16, 2022] Impaired Driving - Late Disclosure Stay of Proceedigns [Crooks J.]

AUTHOR’S NOTE: Often, the best a defence lawyer can do in a situation of late disclosure by the Crown is obtain an adjournment to review the disclosure. In cases, where the Jordan deadline is passed through such a process an 11(b) win might result. However, it is exceedingly rare to get an outright stay of proceedings due to late disclosure where the case is nowhere near Jordan deadlines. Such were the circumstances in this case. To ameliorate systemic problems with providing disclosure in the jurisdiction and recognizing the immediate and continuing punishment of roadside driving suspensions, the Court here upheld a stay granted at the trial level. 

Introduction

[1] On June 2, 2020, charges against the respondent, Stacey Jobb [respondent], were stayed by the learned Provincial Court judge [trial judge]. This followed a determination that the respondent’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were breached because of late disclosure by the Crown. The trial judge issued a stay of proceedings as a remedy pursuant to s. 24(1) of the Charter.

[2] The Crown has appealed the decision of the trial judge. The Crown acknowledges a breach of the respondent’s s. 7 Charter rights but appeals the stay of proceedings granted as a remedy for the breach. For the reasons set out below, the Crown’s appeal is dismissed.

The Voir Dire

[3] On December 21, 2019, the respondent was charged ...

[4] On December 24, 2019, counsel for the respondent requested disclosure from the Crown. Crown counsel did not advise the investigating officer, Cst. LeBlue, of the disclosure request. While much of the requested disclosure was subsequently provided by the Crown, video of the cell block and in-car video [videos] were not disclosed.

[8] On February 27, 2020, the Crown emailed Cst. LeBlue requesting the videos. The email from Crown counsel sought “cell block video, in [car] camera video or interview room video (observation period)”. This was the first request to Cst. LeBlue for the videos.

[9] As Cst. LeBlue was off shift, he received the Crown’s email on March 1, 2020. He delivered the videos to Crown counsel on March 2, 2020 at 7:30 a.m.

[10] On March 2, 2020, the respondent filed a second Charter notice alleging a violation of s. 7 as a result of the non-disclosure of the videos. The respondent sought a stay of proceedings or exclusion of the videos as a remedy.

[11] On March 3, 2020, the Crown mailed the videos to the office of counsel for the respondent. These videos did not arrive until the morning of March 6, 2020 when counsel for the respondent was already in transit to Prince Albert to attend this trial.

[12] On March 6, 2020, the trial could not proceed as counsel for the respondent had not received the video disclosure. Instead, a voir dire was held on the sole issue of the late disclosure of these videos based on the alleged breach of the respondent’s Charter rights. Two witnesses testified on the voir dire: Cst. LeBlue and the respondent.

[13] The respondent testified about the impacts of the administrative licence suspension while awaiting his trial on these charges and the challenges arising as a result, including his inability to travel to Regina when his 13-year-old son had a serious health emergency.

[15] Despite having heard nothing from Crown counsel, Cst. LeBlue testified that he had been proactive in requesting the videos through the IT department in mid- February and they remained on the police file. However, the videos were not requested by the Crown until their email request of February 27, 2020 and he did not forward the videos to the Crown until he received their request on March 1, 2020. Cst. LeBlue was frank and forthright in acknowledging there have been ongoing issues with obtaining video disclosure from their IT department since 2017.

Breach of the Respondent's Section 7 Charter Rights

23  In either case, whether the Crown's failure to disclose amounts to an abuse of process or is otherwise a breach of the duty to disclose and therefore a breach of s. 7 of the Charter, a stay may be the appropriate remedy if it is one of those rarest of cases in which a stay may be imposed, the criteria for which have most recently been outlined in O'Connor, supra. With all due respect to the opinion expressed by my colleague Justice L'Heureux-Dubé to the effect that the right to disclosure is not a principle of fundamental justice encompassed in s. 7, this matter was settled in Stinchcombe (No. 1), supra [1991 CanLII 45 (SCC), [1991] 3 SCR 326], and confirmed by the decision of this Court in R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80. In Stinchcombe (No. 1) the right to make full answer and defence of which the right to disclosure forms an integral part was specifically recognized as a principle of fundamental justice included in s. 7 of the Charter. This was reaffirmed in Carosella. In para. 37 I stated on behalf of the majority:

The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused's constitutional rights without the requirement of an additional showing of prejudice. To paraphrase Lamer C.J. in Tran [1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951], the breach of this principle of fundamental justice is in itself prejudicial. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to s. 24(1) of the Charter.

[19] There is no question that the videos are strongly relevant. They provide the trier of fact with an opportunity to observe events and interactions in cases where signs of impairment and well-established legal process are key to allegations of Charter breaches and central to elements of the offence. Determining the respondent’s impairment is essential to the charges. Reviewing the steps taken by the investigating officer is relevant not only to the substantive charges, but the Charter application which often accompany charges of this nature. In some circumstances, these videos will bolster the Crown’s case; in other circumstances, they can ground an acquittal. But in all circumstances they are strongly relevant and of significant assistance to the court.

[20] ... For the purposes of this appeal, I accept there was no error in the trial judge’s finding that the Crown violated the respondent’s right to make full answer and defence through their late disclosure of the videos.

[21] As a violation of the respondent’s s. 7 rights has been acknowledged by the Crown, my decision focusses on the stay of proceedings granted by the trial judge pursuant to s. 24(1) of the Charter.

The Trial Judge's Decision

[22] Relevant portions of the trial judge’s reasons are set out as follows: ...

Specifically, in this case, I make the following finding of fact regarding Constable Leblue’s evidence:

He was not provided with the [December 24, 2019 letter] and did not see [the February 20, 2020 letter], the disclosure letters. Although the matter was set for trial on January 6th, the Crown did not request Constable Leblue to obtain the video evidence and he was not aware of the trial date, which was March 6th, until February 19th. ...

It is likely that Constable Leblue had the video evidence on February 20th, but he neglected to provide it to the Crown until February 27th, with the only explanation being that he was busy.

When the Crown received the video evidence, they sent it to defence counsel by mail on March 3rd. There is no evidence that [defence counsel] was contacted. There is no evidence, despite the evidence that’s been filed, of communication by email or other modes of communication to indicate that this important evidence, the video evidence, was on its way. ...

I appreciate that this is a relatively early trial date within three months. I do find that once the trial date was set that the Crown had an obligation to respond and ensure that the video evidence which had been requested was provided prior to the trial date. As I’ve indicated, this was not done. ... This has compromised, in my view, the accused’s ability to respond to these allegations. He’s retained private counsel. His driving privileges have been suspended. ...

Having reviewed these authorities [in] the context of the facts of this case, I am satisfied that the Crown breached Mr. Jobb’s ... right to make full answer [and] defence contained in Section 7 of the Charter, by its failure to -- to provide timely disclosure. ...

Having reviewed these authorities [in] the context of the facts of this case, I am satisfied that the Crown breached Mr. Jobb’s ... right to make full answer [and] defence contained in Section 7 of the Charter, by its failure to -- to provide timely disclosure.

I specifically refer to paragraph 32 of Justice Moldaver’s [decision in Babos], where he puts out ... a three-stage test to be used to determine whether a stay of proceedings is warranted. The third leg of that test is: (as read)

Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the Court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system against the interest that society has in having a final decision on the merits..

This is ... what this case turns on in ... my view. In balancing the interests in favour of granting a stay, such as sending a clear message to the Prince Albert Police Service and to the Crown, they need to design a process that will ensure a timely disclosure against society’s interest in having an expedited trial.

And particularly, I note that in this case, March the 6th was before the global pandemic was declared and before the state of emergency was declared ... in Saskatchewan....

When I consider all those factors, the balance in my view is that it is appropriate and just under Section 24(1) to enter a stay of proceedings in relation to both counts on Information 736. And I enter that stay of proceedings.

[23] The trial judge clearly assessed that the video-recorded evidence was relevant to the respondent’s defence. As in many impaired driving cases, the video evidence during the initial investigation and arrest and video recorded at the detachment, are strongly relevant to issues of intoxication and to test an officer’s credibility as well as to consider and assess the Charter issues raised, such as in this case.

Standard of Review

[25] A recent decision from the Saskatchewan Court of Appeal in R v K.D.S., 2021 SKCA 84 [K.D.S.], addresses the appropriateness of a stay of proceedings and outlines considerations for the reviewing court. Justice Jackson writes on behalf of the Court of Appeal:

102  The leading decision with respect to the appropriateness of a stay of proceedings is now Babos [2014 SCC 16]. In Babos, Moldaver J. reiterated that a stay of proceedings is warranted in the clearest of cases only. He described two categories of cases: "(1) where state conduct compromises the fairness of an accused's trial (the 'main' category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the 'residual' category) (O'Connor [1995 CanLII 51 (SCC), [1995] 4 SCR 411] at para 73)" (at para 31). The case before this Court falls into the main category.

103  Justice Moldaver discussed the prevailing case law in terms of a framework consisting of three requirements (Babos):

[32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1)     There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, [2002 SCC 12] at para. 54);

(2)     There must be no alternative remedy capable of redressing the prejudice; and

(3)     Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

...

[34] Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.

(Emphasis added) ...

105  In La, Sopinka J. recognized that "in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial" (emphasis added, at para 24). In that paragraph, Sopinka J. went on to say that in such circumstances, provided the necessary criteria has been met, "a stay may be the appropriate remedy ...". However, he stressed that it will usually be preferable to reserve on an application for a stay of proceedings until all of the evidence is called. On this point, he wrote:

[27] The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit. This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidence cases. In R. v. B.(D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382:

[26] On the standard of review to be applied to a stay of proceedings, Justice Jackson goes on to state in K.D.S.:

108  Later in his reasons, Moldaver J. in Babos set the standard of review to be applied to the grant or refusal of a stay of proceedings as follows:

[48] ... Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is "so clearly wrong as to amount to an injustice" (Bellusci, [2012 SCC 44] at para. 19; Regan, at para. 117; Tobiass, [1997 CanLII 322 (SCC), [1997] 3 SCR 391] at para. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 15 and 51).

[27] Accordingly, I have reviewed the decision of the trial judge to determine whether the trial judge misdirected himself in law, committed a reviewable error of fact, or rendered a decision that is so clearly wrong as to amount to an injustice.

Was a Stay an Appropriate Remedy?

[28] In making his determination that a stay of proceedings was the appropriate remedy, the trial judge applied the test set out by the Supreme Court of Canada in R v Babos, 2014 SCC 16, [2014] 1 SCR 309 [Babos]....

[29] In his decision, the trial judge applied the test in Babos, ...

Prejudice

[30]  This issue of prejudice was clearly a significant concern to the trial judge.

[31]  A review of the Crown’s conduct demonstrates they did not pursue or provide relevant disclosure with diligence or timeliness. In fact, despite the first request for disclosure from counsel for the respondent on December 24, 2019, counsel for the Crown did not request the videos from Cst. LeBlue until nearly two months later. While Cst. LeBlue had proactively secured a copy of the video evidence, he did not provide it to the Crown, nor did the Crown request it until February 27, 2020 which was one week prior to the trial date.

[32] While the Crown attempted to explain the delay, the explanations are lacking. The trial judge considered the personal prejudice to the respondent as a result of the Crown’s inaction on their disclosure obligations, including an ongoing administrative suspension of his driver’s licence. He also considered the prospective need to address the disclosure process between the Crown and police, which had contributed to disclosure delays.

[33] The Crown takes issue with the trial judge’s assessment that the breach impacted the respondent’s right to a fair trial and suggests this manifested in a legal error by the trial judge. The focus of the “main category” appears to be whether the accused can still have a fair trial. As the disclosure was not lost or destroyed, there is little question the eventual trial of the accused would have included the video evidence.

[34] However, the prejudice of the ongoing administrative suspension while awaiting trial combined with the delays caused as a result of an ineffective approach to meeting the Crown’s disclosure obligations caused ongoing unfairness to the accused. In my view, this engages the “residual category” as the prejudice risks undermining the integrity of the judicial process.

[35] The trial judge commented on the unique consequences of charges relating to impaired driving or driving over .08 as they result in the immediate administrative suspension of a person’s driver’s licence while facing these charges, which often result in requests for expedited trial dates. This administrative suspension had significant personal impact on the respondent, including his inability to attend to his son following a significant health crisis. While the respondent’s personal hardships were a concern to the trial judge, he was specific that his primary concerns related to the inaction of the Crown when faced with a legitimate disclosure request and the lengthy unexplained delay that followed.

[36] An administrative suspension of an individual’s driver’s licence may be effective public policy to address the serious societal impacts of impaired driving, but it also effectively imposes penalties of conviction while the accused continues to bear the presumption of innocence. It is for this reason that many accused seek an expedited trial date through their counsel, as in this case, which can assist an accused in having a determination on the merits of the case and commence the mandatory driving prohibition in the face of a conviction.

[37] Unlike remand time while awaiting trial dates, time spent under an administrative driving suspension does not result in any adjustment to the penalty imposed in the face of conviction. As such, delays or adjournments for the Crown’s failure to make timely disclosure are of significant consequence to an accused while they are of no consequence to the Crown.

[38] In my view, waiting until a week before trial to provide strongly relevant disclosure despite two previous requests from defence counsel, all while an accused is facing significant personal impacts, risks undermining the integrity of the judicial process. It effectively leaves in the hands of the prosecution the ability to compound the penalty to the accused by delaying disclosure. [PJM Emphasis]

[39] While it may be preferrable in some cases to reserve on a s. 24(1) application, as suggested in La, to do so here would, in effect, continue the prejudice to the accused by the ongoing administrative suspension of his driver’s licence and be of little consequence to the Crown who bore the responsibility for the breach. In this case, a pre-trial remedy was appropriate as there was no other course of action that would cure the prejudice occasioned by the conduct giving rise to the breach.

[40] The trial judge also noted that delayed disclosure was a concern he had raised previously. He pointed to a previous decision in R v Mattice (15 March 2017) (Sask Prov Ct) [Mattice], wherein this same trial judge had evidence from the same officer regarding issues of delayed disclosure and pointed to concerns with the Crown’sprocess for securing disclosure at that time.

[42] While this case did not hinge on the identical scenario as in Mattice, the trial judge assessed that it was reflective of ongoing issues in providing timely disclosure. These ongoing concerns speak directly to the trial judge’s assessment of the Crown’s approach to disclosure and its impact on the integrity of the justice system.

[43] The Crown also takes exception to the respondent’s evidence during the voir dire as he did not testify about the contents of the videos and how it would be relevant to his defence. It is unclear how the respondent would be able to demonstrate or discuss the relevance or impact of the videos on his defence when he had no opportunity to watch them in advance of the court date. As stated by Justice Sopinka in R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80:

30  In R. v. Farinacci, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469 (indexed as R. v. Durette), the appellants complained of the excessive editing of affidavits which had secured wiretap authorization. It was submitted by the respondent Crown and accepted by the majority of the Court of Appeal that the non-disclosure did not impair the right of the appellants to make full answer and defence because they had not shown that the material would be useful. In the majority judgment, at pp. 498-99, we stated:

... As Doherty J.A. stated at p. 477, in concluding that s. 686(1)(b)(iii) was inapplicable:

It is particularly inappropriate to place any onus on the appellants to demonstrate prejudice flowing from the error revealed in this case. The appellants have not seen the unedited affidavits. How can they be expected to show prejudice flowing from the improper editing of those affidavits when they have no idea what information was improperly kept from them? Placing an onus on the appellants to demonstrate prejudice from the denial of appropriate access to the affidavits is akin to the now rejected contention that an accused had to show fraud before she could obtain an order directing the opening of the sealed packet. In both cases the accused is placed in the untenable position of being denied access to the very material which is crucial to demonstrating either prejudice or fraud. [Emphasis added.] ...

[44] The impacts of the late disclosure did cause personal prejudice to the respondent. However, in the circumstances of this case, the trial judge’s conclusions demonstrate he considered that the prejudice to the integrity to the justice system would be perpetuated or aggravated through the conduct of the trial. He was clear that an improved process was required to ensure the Crown provides timely disclosure in a way that respects the rights of an accused person to make full answer and defence.

Alternative Remedy

[48] During the voir dire, the trial judge discussed the Crown’s position that an adjournment was appropriate. ...

[51] The trial judge recognized that alternative remedies were available, noting that where there is late disclosure normally an adjournment with a disclosure order will be appropriate. He determined an adjournment would not be sufficient to remedy the prejudice. It is evident the trial judge was of the view that proceeding with this trial would have perpetuated the prejudice he assessed.

Balancing of Interests

[53] While his comments regarding his conclusions on the balancing of the interests were brief and may have benefited from a more robust analysis, the analysis throughout his decision clearly reflects his high level of concern with respect to the Crown’s cavalier approach to disclosure, noted through the Crown’s absence of urgency in addressing the request for the videos despite the expedited trial dates, the significant relevance of the videos and the resulting impacts both to the accused and on the integrity of the justice system.

[55] Put simply, the evidence on the voir dire was that the disclosure process in place was resulting in delayed disclosure. In the accused’s case, the negligible efforts of the Crown to disclose strongly relevant evidence was so egregious that it warranted a stay of proceedings.

[58] When the trial judge conducted this balancing, it is clear from his reasons that the inaction of the Crown in responding to requests for relevant disclosure, the ongoing inadequacies of the process to ensure timely disclosure and the unfairness to the accused as a result of the delayed disclosure, resulted in a balancing in favour of granting a stay of proceedings. He was clear in his denunciation of the Crown’s conduct in the specific circumstances of this case.

Additional Comment on Disclosure

[59] The general principles that govern the duty of the Crown to make disclosure to the defence were clearly articulated by Sopinka J. in R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326. There is a general duty on the Crown to disclose all material it proposes to use at trial, including all evidence which may assist the accused even if the Crown does not propose to adduce it.

[61] In R v McNeil, 2009 SCC 3, [2009] 1 SCR 66 [McNeil], the Supreme Court of Canada recognized that the Crown cannot merely be a passive recipient of disclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defence. As noted by counsel for the respondent, in-car and cell interview videos are typically available in cases of this nature.

[62] In the Court’s judgment in McNeil, Charron J. also confirmed that police have a duty to disclose, without prompting, “all material pertaining to its investigation of the accused”: ...

[63] In the present case, counsel for the respondent was entirely proactive in attempting to secure the video evidence in order to proceed with the trial. He sent a letter requesting disclosure, including the videos, on December 24, 2019 which was within days of the respondent’s first court appearance. The Crown did not request the videos.

[64] Counsel for the respondent again inquired on February 20, 2020 as to the availability of the videos. The Crown then delayed seven days before making the first request for the videos from the officer, which left only one week before trial. Having had no response, counsel for the respondent filed a Charter application just days before the trial seeking a stay of proceedings based on the non-disclosure of the videos by the Crown.

[66] Counsel for the respondent was diligent in seeking disclosure. This was not a situation where counsel was “lying in the weeds” and waiting for the Crown to fail in meeting their disclosure obligations. They alerted the Crown to the missing disclosure. Counsel for the respondent was entirely upfront in providing their understanding that this was commonly disclosed evidence in charges of this nature and specifically attempting to obtain this evidence in the weeks leading up to trial. Counsel for the respondent was not a passive recipient of disclosure, nor did they use the Crown’s non-disclosure as a tactic. The Crown’s placement of responsibility on counsel for the respondent is misguided.

Conclusion

[67] Section 24(1) of the Charter confers upon the court a discretionary power to provide “such remedy as the court considers appropriate and just in the circumstances”. It grants the court a wide discretion to impose remedies for a breach of Charter rights and freedoms.

[68] The trial judge clearly set out the test for imposing a stay of proceedings and considered relevant case law. The trial judge did not commit a reviewable error of fact. The trial judge’s findings of relevance of the evidence and negligence of the Crown in providing this late disclosure were clearly set out. The remaining question is whether the decision was “so clearly wrong as to amount to an injustice.”

[69] The delays in this case were not adequately explained by the Crown. The Crown had received a disclosure request over two months prior to taking any action. The second request for the video evidence still did not invoke any urgency in the Crown’s approach to obtaining disclosure as counsel took another week before contacting the officer in order to obtain the video evidence. Counsel for the respondent then filed a Charter application seeking a stay of proceedings. It was not until the next day that the Crown finally mailed the video evidence to counsel for the respondent, albeit apparently by regular mail and again without any sense of urgency in ensuring that the respondent’s rights were respected and that disclosure of this strongly relevant evidence was provided in any semblance of a timely manner.

[70] The trial judge determined that the Crown had not treated the disclosure request with the urgency it required, resulting in an unacceptable delay in responding to a legitimate disclosure request. This caused prejudice and unfairness to the respondent which is directly attributable to the Crown’s inaction. This was compounded by the concerns of the trial judge with respect to the need for an efficient and responsive process to ensure timely disclosure.

[72] I recognize there is a distinction between cases where evidence is lost or destroyed and those where disclosure is late. Delays in disclosure may be remedied by an adjournment whereas the passage of time will not remedy the harm of destroyed evidence. However, the trial judge was aware of the distinction between the impacts of destroyed and delayed disclosure and, in the circumstances of this case, he exercised his discretion to grant a stay of proceedings. He also recognized that an order for a stay of proceedings should be rare and restricted to the clearest of cases.

[73] What sets this case apart from other cases where there may be late disclosure are a number of issues: the inaction of the Crown in requesting the videos despite a general disclosure request and a follow-up disclosure request specifically seeking the videos; the absence of urgency in providing the disclosure to counsel for the respondent despite the clear delays; the Crown’s position that the respondent bore any responsibility for the Crown’s delayed disclosure; and the continuing administrative suspension of the respondent’s driver’s licence. [PJM Emphasis]

[75] In short, counsel for the respondent was diligent in seeking disclosure of the videos, well known to form part of the disclosure evidence in charges of this nature. Unfortunately, the Crown took an unacceptable approach to meeting their obligations to disclose the videos, treating this well-established breach of the respondent’s Charter rights as a completely incidental event.

[76] The trial judge did not err in exercising his discretion to impose a stay of proceedings in the specific circumstances of this case....

[77] The delays in disclosure in this case lie solely at the feet of the Crown. While the delay was not “deliberate”, it demonstrated a disregard for the respondent’s Charter rights and the Crown’s disclosure obligations.

[79] The summary conviction appeal is dismissed.

R v Akhi, 2022 ONCA 264

[March 29, 2022] Jury Instructions where there are Two Co-Accused [Janet Simmons, B.W. Miller, I.V.B. Nordheimer JJ.A.]

AUTHOR’S NOTE: Co-accused trials with multiple counts are often complicated affairs that need a clarification through closing submissions and jury instructions. Here, the jury instructions caused confusion by trying to combine the instruction for both accused into one. The ONCA herein states that the best approach is to keep each accused separate in the instructions so that the potential legal culpability of each is not confused with the other. It is a good short case to keep on hand during a pre-charge jury conference. 

Reasons

[1] Elias Akhi and Jezreel Moxam appeal from their convictions for robbery, assault with a weapon, and other offences arising out of a home invasion robbery that occurred on September 28, 2016. ...

[2] On September 28, 2016, a woman was abducted from her home at gunpoint. The woman lived in a home in London with her two daughters, her boyfriend, and her boyfriend's brother. Her boyfriend and his brother were drug dealers.

[3] On the night in question, two men entered the woman’s home and tied her up along with the two brothers. These two men were later identified as Azizullah Hadi and the appellant, Moxam. The men demanded drugs, money, and valuables. One of the men pistol-whipped her boyfriend. When no drugs were found, they threatened to take the children. Ultimately, the woman was blindfolded and taken to a car driven by a third man. The three men drove her to an apartment building, in the apparent belief that drugs would be found there. They met another vehicle (the “second vehicle”) occupied by three other men. One of the men from the second vehicle, William Pieszchala, opened the door to the building. Hadi and the woman went to a unit on the second floor. When no one answered the door, they went back downstairs where Moxam gave the woman money for a phone call and told her not to remove her blindfold until after the men had left.

[4] Following the incident, Pieszchala approached the police and provided a statement concerning his involvement in the incident. Among other things, Pieszchala alleged that Akhi was in the second vehicle and that he not only forced Pieszchala to participate in the offences at gunpoint but also gave directions to Hadi and Moxam concerning carrying out the offences over the phone. The police eventually charged five individuals with various offences. Two of those individuals subsequently had their charges withdrawn. After Hadi pleaded guilty, the trial proceeded only as against the appellants.

[6] This case was complicated by two principal factors. One was that there were two accused. The other, and more significant, complicating factor was that the information initially contained 26 different counts. Some counts related to individual accused and other counts related to accused charged jointly. The fact that Hadi resolved his case led to there being a reduction in the number of counts, but it still required the jury to be instructed on 14 counts.

[7] Further, the instructions given to the jury included not only instructions on liability as principals, but also instructions on liability as parties, either as aiders under s. 21(1)(b) or common intention under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46. Unfortunately, in attempting to address all of these moving parts, the jury instructions became very confused.

[8] By way of example, the trial judge adequately set out the requirements for common intention under s. 21(2) very early in her instructions. However, much later, when she came to the actual counts that the jury had to decide, she moved back and forth between common intention, aiding, and joint principals, all without adequately delineating between the three. Indeed, she generally failed to delineate which counts might properly attract liability for which accused on which basis. Further, in instructing on common intention, the trial judge failed to clearly set out which offences were ones that the accused had agreed to commit, and which offences were ones that the accused knew, or should have known, one of the other participants would probably commit.

[9] Adding to the confusion in this regard is the fact that while the trial judge initially told the jury that the two appellants had to be treated separately, in dealing with the various counts where they were jointly charged, which were 11 of the 14 counts, she referred throughout to Akhi “and/or” Moxam. This conjunction failed to maintain the separateness that was required when the jury was considering the question of guilt respecting each appellant. Because Akhi was never in the house, the avenues of liability for him were often distinct from those available for Moxam who was. While it may somewhat lengthen the overall instructions, the best practice will generally be for a trial judge to deal with each accused separately, even if that results in a measure of repetition. In any event, each potential basis for liability should be clearly and separately laid out for each offence and each accused. One significant consequence of the confusion in this case was that, in some instances, the trial judge instructed on avenues of liability not sought by the Crown and which were not available on the evidence. [PJM Emphasis]

[12] In our view, there is no safe way of separating out the confusion that was created by the erroneous jury instructions as between the various counts or as between the two appellants. If the jury was left in a state of confusion regarding what the Crown needed to establish for a conviction beyond a reasonable doubt, it cannot be said with any level of comfort that the confusion would only have permeated their consideration of some charges and not others.

[13] We would add that this case demonstrates the risks associated with including multiple counts in an indictment that arise out of the same conduct. It would benefit the conduct of prosecutions generally if the Crown identified the key offences involved and prosecuted only those offences. As Moldaver J. said recently, in R. v. R.V., 2021 SCC 10, 455 D.L.R. (4th) 253, at para. 78:

It is incumbent upon the Crown as a participant in the justice system to make the trial process less burdensome, not more. The Crown fails in that regard when it proceeds with duplicative counts. Doing so not only increases the length of the trial; it also places a greater burden on trial judges and juries by increasing, as it does, the complexity of jury instructions [Citation omitted.]

See also R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 58.

[14] In the end result, the jury instructions did not properly equip the jury with the tools necessary to decide this case fairly. The convictions cannot stand and must be set aside.

[15] It is for these reasons that we allowed the appeal and ordered a new trial. ...