MOTOR VEHICLE REPORTS - Thomson Reuters Canada

MOTOR VEHICLEREPORTS

Seventh Series/Septieme serieRecueil de jurisprudence en droit

des vehicules a moteur

VOLUME 6(Cited 6 M.V.R. (7th))

EDITOR-IN-CHIEF/REDACTEUR EN CHEFMurray D. Segal, B.A., B.C.L., LL.B.

Murray D. Segal Professional CorporationToronto, Ontario

ASSOCIATE EDITORS/REDACTEURS ADJOINTSJustice Rick LibmanOntario Court of Justice

Toronto, Ontario

John C. Pearson, B.A., LL.B., LL.M. Liz Rice, B.A., LL.B.

Counsel Barrister & SolicitorOntario Toronto, Ontario

EDITORIAL STAFF/REDACTIONCheryl L. McPherson, B.A. (HONS.)

Director, Content Operations — Primary Law & Quebec

Catherine Bennett, LL.B., LL.M.

Product Development Manager

Julia Fischer, B.A. (HONS.), LL.B. Nicole Ross, B.A., LL.B.

Supervisor, Legal Writing Supervisor, Legal Writing

Mike MacInnes, B.A. (HONS.), LL.B. Anne Simpson, B.A., M.L.S., LL.B.

Senior Legal Writer Lead Legal Writer

Martin-Francois Parent, LL.B., LL.M., Jackie BowmanDEA (PARIS II) Senior Content Editor

Bilingual Legal Writer

MOTOR VEHICLE REPORTS, a national series of topical law reports, is Recueil de jurisprudence en droit des vehicules a moteur, une serie na-

published 12 times per year. tionale de recueils de jurisprudence specialisee, est publie 12 fois par annee.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la redaction est situe a Montreal — 430, rue St. Pierre, Mon-

Montreal, Quebec, H2Y 2M5. treal, Quebec, H2Y 2M5.

________ ________

© 2017 Thomson Reuters Canada Limited © 2017 Thomson Reuters Canada Limitee

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION DE RESPON-

tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE : Tous droits reserves. Il est interdit de reproduire, memoriser sur

form or by any means, electronic, mechanical, photocopying, recording or un systeme d’extraction de donnees ou de transmettre, sous quelque forme ou

otherwise, without the prior written consent of the publisher (Thomson par quelque moyen que ce soit, electronique ou mecanique, photocopie, enre-

Reuters Canada, a division of Thomson Reuters Canada Limited). gistrement ou autre, tout ou partie de la presente publication, a moins d’en

avoir prealablement obtenu l’autorisation ecrite de l’editeur, Thomson

Reuters Canada, une division de Thomson Reuters Canada Limitee.A licence, however, is hereby given by the publisher:

Cependant, l’editeur concede, par le present document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) a un avocat, pour reproduire quelque partie de cette publication pourjudge or other presiding officer or to other parties in making legal submis- remettre a un juge ou un autre officier-president ou aux autres parties danssions in judicial proceedings; une instance judiciaire;

b) a un juge ou un autre officier-president, pour produire quelque partie de(b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ouin judicial proceedings; or

c) a quiconque, pour reproduire quelque partie de cette publication dans le

cadre de deliberations parlementaires.(c) to anyone to reproduce any part of this publication for the purposes of

« Instance judiciaire » comprend une instance devant une cour, un tribunal ouparliamentary proceedings.une personne ayant l’autorite de decider sur toute chose affectant les droits ou

les responsabilities d’une personne.“Judicial proceedings” include proceedings before any court, tribunal or per-

son having authority to decide any matter affecting a person’s legal rights or Ni Thomson Reuters Canada ni aucune des autres personnes ayant participe a

liabilities. la realisation et a la distribution de la presente publication ne fournissent

quelque garantie que ce soit relativement a l’exactitude ou au caractere actuel

de celle-ci. Il est entendu que la presente publication est offerte sous la re-Thomson Reuters Canada and all persons involved in the preparation and saleserve expresse que ni Thomson Reuters Canada, ni le ou les auteurs de cetteof this publication disclaim any warranty as to accuracy or currency of thepublication, ni aucune des autres personnes ayant participe a son elaborationpublication. This publication is provided on the understanding and basis thatn’assument quelque responsabilite que ce soit relativement a l’exactitude ounone of Thomson Reuters Canada, the author/s or other persons involved inau caractere actuel de son contenu ou au resultat de toute action prise sur lathe creation of this publication shall be responsible for the accuracy or cur-foi de l’information qu’elle renferme, ou ne peuvent etre tenus responsablesrency of the contents, or for the results of any action taken on the basis of thede toute erreur qui pourrait s’y etre glissee ou de toute omission.information contained in this publication, or for any errors or omissions con-

tained herein. La participation d’une personne a la presente publication ne peut en aucun

cas etre consideree comme constituant la formulation, par celle-ci, d’un avis

juridique ou comptable ou de tout autre avis professionnel. Si vous avezNo one involved in this publication is attempting herein to render legal, ac-besoin d’un avis juridique ou d’un autre avis professionnel, vous devezcounting, or other professional advice. If legal advice or other expert assis-retenir les services d’un avocat ou d’un autre professionnel. Les analysestance is required, the services of a competent professional should be sought.comprises dans les presentes ne doivent etre interpretees d’aucune faconThe analysis contained herein should in no way be construed as being eithercomme etant des politiques officielles ou non officielles de quelque organ-official or unofficial policy of any governmental body.isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of 8 Le papier utilise dans cette publication satisfait aux exigences minimales

American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of

per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0709-5341 ISBN 978-0-7798-7644-0

Printed in Canada by Thomson Reuters

THOMSON REUTERS CANADA, A DIVISION OF THOMSON REUTERS CANADA LIMITED

One Corporate Plaza Customer Relations2075 Kennedy Road Toronto 1-416-609-3800Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164M1T 3V4 Fax 1-416-298-5082

www.carswell.comContact www.carswell.com/email

R. v. Wadood 181

[Indexed as: R. v. Wadood]

Her Majesty the Queen ex rel. The Regional Municipality ofYork (Appellant) and Amatal Wadood and Douglas Davis

(Respondents)

Ontario Court of Appeal

Docket: CA C60339

2017 ONCA 45

John Laskin, Robert J. Sharpe, B.W. Miller JJ.A.

Heard: September 1, 2016

Judgment: January 19, 2017

Motor vehicles –––– Offences and penalties — Prosecutions — Informationor notice — Formal validity –––– In separate incidents, accused W and D wereeach charged with offence contrary to Highway Traffic Act — In each case, cer-tificate of offence given to accused was incomplete or incorrect, so officer com-pleted certificate with correct information before filing it with court — Each ac-cused was deemed not to dispute charge due to failure to appear for trial andjustice of peace, concluding that each certificate of offence was “complete andregular on its face,” entered conviction — Accused appealed their convictions,asking that certificates of offence be set aside on basis that Provincial OffencesAct (POA) does not authorize “after-service amendment” — Appeals were al-lowed on basis that changes to certificates of offence “were made without au-thority” — Regional municipality appealed — Appeal allowed — Under s. 9.1of POA, defendant served with offence notice who does not appear for sched-uled trial date is deemed not to dispute charge; and under s. 9.1(2), justice shallenter conviction in defendant’s absence, but only if certificate of offence is“complete and regular on its face” — While s. 90(1)(b) of POA does not explic-itly authorize officer to amend certificate of offence after serving offence noticebut before filing certificate with court, and implicit authority to do so should notbe read into s. 90, nothing in POA prevents officer from making such amend-ment — Officers are entitled to change information on certificate of offencebefore filing with court, even after serving defendant with offence notice —Whether amendment will invalidate conviction depends on nature of amendmentand its impact on defendant — Here, each amendment did no more than correctminor clerical error on certificate, neither accused was misled or prejudiced byamendment, and thus validity of proceeding against each of them was preservedby s. 90 — Both convictions restored.

Motor vehicles –––– Offences and penalties — Prosecutions — Jurisdictionof courts — Appellate –––– In separate incidents, accused W and D were eachcharged with offence contrary to Highway Traffic Act — In each case, certifi-cate of offence given to accused was incomplete or incorrect, so officer com-

MOTOR VEHICLE REPORTS 6 M.V.R. (7th)182

pleted certificate with correct information before filing it with court — Each ac-cused was deemed not to dispute charge due to failure to appear for trial andjustice of peace, concluding that each certificate of offence was “complete andregular on its face,” entered conviction — Accused appealed their convictions,asking that certificates of offence be set aside on basis that Provincial OffencesAct (POA) does not authorize “after-service amendment” — Appeals were al-lowed on basis that changes to certificates of offence “were made without au-thority” — Regional municipality appealed — Appeal allowed — While s.90(1)(b) of POA does not explicitly authorize officer to amend certificate ofoffence after serving offence notice but before filing certificate with court, noth-ing in POA prevents officer from making such amendment — Section 90 ofPOA does not preclude appeal judge from invalidating convictions — In W’scase, certificate of offence was changed before filing by adding name of munici-pality where offence allegedly occurred — In D’s case, certificate of offencewas changed by correcting year in which offence allegedly occurred — Inneither case was accused misled by change, as both were aware of charge thatthey had to answer — However, appeal judge erred in law because he failed togive effect to, or even consider, s. 90 of POA — Minor variances between cer-tificates and offence notices did not affect validity of either proceeding or con-viction of each accused — Both convictions restored.

Criminal law –––– Provincial offences — Commencement of proceedings —Certificate offence — Filing certificate with court –––– In separate incidents,accused W and D were each charged with offence contrary to Highway TrafficAct — In each case, certificate of offence given to accused was incomplete orincorrect, so officer completed certificate with correct information before filingit with court — Each accused was deemed not to dispute charge due to failure toappear for trial and justice of peace, concluding that each certificate of offencewas “complete and regular on its face,” entered conviction — Accused appealedtheir convictions on basis that Provincial Offences Act (POA) does not authorize“after-service amendment” — Appeals were allowed and regional municipalityappealed — Appeal allowed — While s. 90(1)(b) of POA does not explicitly au-thorize officer to amend certificate of offence after serving offence notice butbefore filing certificate with court, and implicit authority to do so should not beread into s. 90, nothing in POA prevents officer from making such amend-ment — Here, each amendment did no more than correct minor clerical error oncertificate, neither accused was misled or prejudiced by amendment, and thusvalidity of proceeding against each of them was preserved by s. 90 — Section90 of POA does not preclude appeal judge from invalidating convictions — InW’s case, certificate of offence was changed before filing by adding name ofmunicipality where offence allegedly occurred — In D’s case, certificate of of-fence was changed by correcting year in which offence allegedly occurred — Inneither case was accused misled by change, as both were aware of charge thatthey had to answer — However, appeal judge erred in law because he failed to

R. v. Wadood 183

give effect to, or even consider, s. 90 of POA — Minor variances between cer-tificates and offence notices did not affect validity of either proceeding or con-viction of each accused — Both convictions restored.

Cases considered by John Laskin J.A.:

London (City) v. Young (2008), 2008 ONCA 429, 2008 CarswellOnt 3091, 237O.A.C. 357, 233 C.C.C. (3d) 10, 75 Admin. L.R. (4th) 280, 65 M.V.R. (5th)208, 91 O.R. (3d) 215, [2008] O.J. No. 2118 (Ont. C.A.) — considered

Ontario (Ministry of Labour) v. Discovery Place Ltd. (1996), 1996 CarswellOnt637, [1996] O.J. No. 690 (Ont. Gen. Div.) — referred to

Ontario (Ministry of Labour) v. Discovery Place Ltd. (1997), 1997 CarswellOnt1530, [1997] O.J. No. 1887 (Ont. C.A.) — referred to

R. v. Aristidou (2007), 2007 ONCJ 250, 2007 CarswellOnt 3579, [2007] O.J.No. 2229 (Ont. C.J.) — considered

R. v. Farah (2015), 2015 ONCA 302, 2015 CarswellOnt 6309, [2015] O.J. No.2240 (Ont. C.A.) — referred to

R. v. Koza (1995), [1995] O.J. No. 4278, 1995 CarswellOnt 7235 (Ont. Prov.Div.) — considered

R. v. McGonigal (October 1, 1990), T. Wolder, [1990] O.J. No. 3400 (Ont.C.J.) — considered

R. v. Mirza (2012), 2012 CarswellOnt 17357, [2012] O.J. No. 6505 (Ont.C.J.) — considered

R. v. Montone (2007), 2007 ONCJ 251, 2007 CarswellOnt 3580, [2007] O.J. No.2230 (Ont. C.J.) — considered

R. v. Nandalall (2008), 2008 CarswellOnt 8954, [2008] O.J. No. 6034 (Ont.S.C.J.) — considered

R. v. Pawar (2007), 2007 CarswellOnt 2464, 36 M.P.L.R. (4th) 90, [2007] O.J.No. 1566 (Ont. S.C.J.) — considered

R. v. Tizzard (2011), 2011 ONCJ 821, 2011 CarswellOnt 15417, [2011] O.J. No.6156 (Ont. C.J.) — considered

Statutes considered:

Highway Traffic Act, R.S.O. 1990, c. H.8s. 128 — pursuant tos. 142(1) — pursuant to

Provincial Offences Act, R.S.O. 1990, c. P.33s. 2(1) — considereds. 3(1) — considereds. 9(1) — considereds. 9(2)(a) — considereds. 9(2)(b) — considereds. 9.1 [en. 1993, c. 31, s. 1(3)] — considereds. 9.1(2) [en. 1993, c. 31, s. 1(3)] — considereds. 9.1(3) [en. 1993, c. 31, s. 1(3)] — considered


s. 34(1) — considereds. 34(2) — considereds. 90 — considereds. 90(1)(b) — considereds. 90(2) — considereds. 124(2) — considereds. 136 — considered

Rules considered:

Rules of the Ontario Court (Provincial Division) in Provincial Offences Pro-ceedings, R.R.O. 1990, Reg. 200

R. 2(1) — consideredR. 15(1) ¶ 2 — considered

APPEAL by Crown from judgment reported at R. v. Davis (2015), [2015] O.J.No. 2473 (Ont. C.J.), allowing appeals by two accused from convictions for of-fences under Highway Traffic Act on basis that changes to certificates of offencewere made without authority.

Chris G. Bendick, for AppellantArvin Ross — amicus curiae

John Laskin J.A.:

A. INTRODUCTION1 When a police officer stops a motorist for a minor traffic offence,

typically the officer will fill out the relevant information on a form calledthe “certificate of offence”. Underneath the certificate is a carbon copycalled the “offence notice”. The officer gives the offence notice (com-monly called a “ticket”) to the motorist, and then files the certificate ofoffence with the court, which has the effect of commencing proceedingsagainst the motorist.

2 Is the officer entitled to change the information on the certificate ofoffence after giving the offence notice to the motorist, but before filingthe certificate with the court? Suppose the officer does so, but the motor-ist does not initially dispute the charge and is convicted. If the motoristthen appeals, and the appeal judge is made aware of the variance be-tween the certificate of offence and the offence notice, should the judgeset aside the conviction? These two questions are raised by this appeal.And trial judges have answered them in different ways.

R. v. Wadood John Laskin J.A. 185

B. BACKGROUND FACTS3 The respondent Amatal Wadood was charged with the offence of

“turn not in safety”, contrary to s. 142(1) of the Highway Traffic Act.1

She was served with the offence notice and drove away. The certificateof offence was incomplete, because it did not contain the name of themunicipality where the alleged offence occurred. So the officer added“City of Vaughan” before filing the certificate of offence with the court.

4 The respondent Douglas Davis was charged with “speeding 149 kphin a posted 100 kph zone”, contrary to s. 128 of the Highway Traffic Act.He was served with the offence notice and left. The officer then realizedthat the certificate of offence contained the incorrect year for the allegedoffence - 2012 instead of 2013. So before filing the certificate of offencewith the court, the officer inserted the correct year.2

5 Both Wadood and Davis asked for a trial, but neither appeared at theirscheduled trial date. Because of their failure to appear, they were deemedto not wish to dispute their charges under s. 9.1 of the Provincial Of-fences Act.3 When a defendant fails to appear for trial, s. 9.1 directs thejustice of the peace to examine the certificate of offence and enter a con-viction if the certificate is “complete and regular on its face”. The justiceof the peace in each case concluded that the certificate of offence was“complete and regular on its face”, and Wadood and Davis were eachconvicted.

6 Both Wadood and Davis then appealed and asked to set aside the cer-tificates of offence and their convictions on the ground that the Provin-cial Offences Act did not authorize an “after-service amendment”. Inother words, they argued that the officers did not have statutory authorityto make changes to the certificates of offence after having servedWadood and Davis with their offence notices.

7 The appeal judge in the Ontario Court of Justice allowed their ap-peals. Although he concluded that neither Wadood nor Davis was misledby the change to each certificate of offence - “both were aware of the

1 R.S.O. 1990, c. H.8.2 Although the record is unclear who made the change to the certificates, I havepresumed in each case the officer did so. Nothing turns on who made thechanges; only that they were made before the certificates were filed with thecourt.3 R.S.O. 1990, c. P.33.


charge that they had to answer” - he nonetheless quashed both convic-tions, because in his view, the changes to the certificates of offence“were made without authority”.

8 The appellant, the Regional Municipality of York, sought leave to ap-peal to this court. Weiler J.A. granted leave. She wrote:

The test for granting leave to appeal under s. 139 of the POA is met.The questions posited in the Crown’s factum at para. 20 are questionsof law, there is conflicting jurisprudence, the statute in issue has wideapplicability and is of general application and the issue will undoubt-edly arise again; it is essential in the public interest and for the dueadministration of justice that leave be granted.

C. ISSUES9 Section 90 of the Provincial Offences Act is at issue on this appeal.

That section states: 90. (1) The validity of any proceeding is not affected by,

(a) any irregularity or defect in the substance or form of the sum-mons, warrant, offence notice, parking infraction notice, un-dertaking to appear or recognizance; or

(b) any variance between the charge set out in the summons, war-rant, parking infraction notice, offence notice, undertaking toappear or recognizance and the charge set out in the informa-tion or certificate.

(2) Where it appears to the court that the defendant has been misledby any irregularity, defect or variance mentioned in subsection (1),the court may adjourn the hearing and may make such order as thecourt considers appropriate, including an order under section 60 forthe payment of costs.

10 The Municipality raises two specific issues regarding s. 90:

1. Does s. 90(1)(b) of the Provincial Offences Act impliedly author-ize an officer to amend the certificate of offence before it has beenfiled with the court, but after the offence notice has been served?

2. Did s. 90 preclude the appeal judge from invalidating theconvictions?

11 I have concluded that though s. 90 does not authorize an officer toamend the certificate after serving the offence notice, but before filingthe certificate with the court, nothing in the Provincial Offences Act pre-vents an officer from doing so. Whether an amendment will invalidate a


conviction depends on the nature of the amendment and its impact on adefendant.

12 In the appeals before us, each amendment did no more than correct aminor clerical error on the certificate; neither Wadood nor Davis wasmisled or prejudiced by the amendment; and thus the validity of the pro-ceeding against each of them was preserved by s. 90.

13 I would allow the Municipality’s appeal and restore both convictions.

D. DISCUSSION

(1) The effect of s. 90 of the Provincial Offences Act

(a) Overview14 An important goal of the Provincial Offences Act is that cases be de-

cided on their merits. A corollary to that goal is that a minor defect in aproceeding, not prejudicing a defendant, should not be given effect to.Section 90 is one of several provisions in the statute that allows courts tomeet this goal.

15 The Municipality relies especially on s. 90(1)(b). It submits that bystating that a variance between an offence notice and a certificate doesnot affect the validity of the proceeding, this provision implicitly (thoughnot expressly) authorizes a provincial offences officer to amend a certifi-cate of offence before filing it with the court.

16 The respondents Wadood and Davis do not agree with the Municipal-ity’s position. They submit that it would be unfair to permit an officer tochange information on the certificate after having served an offence no-tice on a defendant; the defendant assumes that the information on eachdocument is identical.

17 The issue between the parties is narrow, but important. It is narrowbecause both parties agree that once a certificate of offence is filed withthe court, only the court can amend it. That only the court can do so isevident from s. 3(1) of the Provincial Offences Act and rr. 2(1) and15(1)2 of the Rules of the Ontario Court (Provincial Division) in Provin-cial Offences Proceedings.4

18 Under s. 3(1) of the Provincial Offences Act, the filing of a certificateof offence with the court commences a proceeding against a defendant.Rule 2(1) states that the rules “apply to proceedings under the Act and a

4 R.R.O. 1990, Reg. 200.


word or term in the Act has the same meaning in these rules as it has inthe Act.” Thus, the rules apply to a proceeding commenced by filing acertificate of offence with the court. And r. 15(1)2 provides that amend-ing a certificate of offence “shall be dealt with only in court.”

19 Thus, the issue narrows to whether an officer can amend a certificateof offence before filing it with the court and the effect of doing so. Theissue is nonetheless important, largely because of ss. 9(1) and 9.1 of theProvincial Offences Act. These sections apply when a defendant fails torespond to an offence notice, or fails to show up for trial.

20 Under s. 9(1), a defendant who does nothing after being served withan offence notice is “deemed to not wish to dispute the charge”. Andunder s. 9(2)(a), the presiding justice shall convict the defendant in thedefendant’s absence, but only if the certificate of offence “is completeand regular on its face”. Under s. 9(2)(b), if the certificate is not com-plete and regular on its face, the presiding justice must quash the pro-ceeding. The requirement that the certificate be complete and regular onits face thus provides some protection to a defendant who chooses not todispute a charge.

21 Similarly, under s. 9.1, a defendant served with an offence notice whodoes not appear for a scheduled trial date “is deemed to not wish to dis-pute the charge”. And under s. 9.1(2), the presiding justice shall convictthe defendant in the defendant’s absence, but again only if the certificateof offence “is complete and regular on its face”. If it is not, under s.9.1(3), the justice must quash the proceeding.

22 It is thus understandable why an officer, to ensure a conviction if adefendant does not dispute a charge, will want to correct minor errors oromissions on the certificate of offence - be it a missing name of a munic-ipality, an incorrect spelling of a defendant’s name, or the incorrect yearthe offence was alleged to have been committed. These minor errors mayoccur as officers issue thousands of tickets annually.

23 However, I do not entirely agree with the Municipality’s submission.I would be hesitant to read into s. 90 an implicit authority to amend. ButI see nothing in the statute or rules that precludes an officer from amend-ing the certificate. If the officer does so, and the variance between thecertificate and the offence notice comes before the court, then the presid-ing judge will have to decide whether the defendant was misled orprejudiced by the amendment. If not, then s. 90 will validate theproceeding.


24 To put my conclusion in context, I will briefly discuss the optionsavailable to a defendant after being served with an offence notice, ss.9(1) and 9.1 proceedings, and the case law in the trial courts.

(b) The offence notice25 A defendant served with an offence notice has four options, each of

which is specified on the notice:

1. Plead guilty in writing and send in the amount of the fine specifiedin the offence notice;

2. Agree to plead guilty, but ask to appear before a justice to makesubmissions on penalty;

3. Give notice of an intent to appear in court and dispute the chargeat a trial;

4. Do nothing or not appear, and thus be deemed not to wish to dis-pute the charge and be liable to conviction.

It is the fourth option that gives rise to the issues on appeal.

(c) The certificate of offence and ss. 9(1) and 9.1 proceedings26 When a defendant decides to do nothing after being served with an

offence notice, or at first requests a trial and then does not appear fortrial, the presiding justice examines the certificate of offence in the de-fendant’s absence.

27 Significantly, the presiding justice has the certificate of offence, butnot the offence notice. Thus, any variance between the two documentswill not be apparent to the presiding justice. Equally, the presiding jus-tice will have no way of knowing whether an officer had amended thecertificate of offence after having served the offence notice. The presid-ing justice’s only task is to examine the certificate of offence and deter-mine whether it is complete and regular on its face. If it is, the defendantwill be convicted; if it is not, the proceeding must be quashed.

28 In the present case, both Wadood and Davis initially opted to disputethe charge and requested a trial. Each was given a trial date. But neitherappeared for trial. So, in each case, the presiding justice of the peaceproceeded under s. 9.1. Each certificate of offence was examined andfound to be complete and regular on its face, and thus both Wadood andDavis were convicted, even though each certificate of offence had beenamended after the offence notice had been served. This is not the case todiscuss what is required for a certificate of offence to be complete and


regular on its face. Neither Wadood nor Davis dispute that each certifi-cate placed before the presiding justices was complete and regular on itsface.

29 What follows from this discussion, however, is that s. 90 has no roleto play in proceedings under ss. 9(1) or 9.1 of the Provincial OffencesAct. Section 90 - especially ss. 90(1)(b) and 90(2) - contemplates a com-parison between the certificate of offence and the offence notice to deter-mine whether a “variance” exists between the two documents. But in ss.9(1) or 9.1 proceedings, that comparison cannot be made, as the offencenotice is not before the court.

30 As Feldman J.A. said succinctly in London (City) v. Young, 2008ONCA 429, 91 O.R. (3d) 215 (Ont. C.A.), at para. 23: “s. 90 applies inthe context of a hearing before the court, and therefore not where thejustice is proceeding on default under s. 9(1) where no hearing is held.”Apart from any other consideration, I thus find it hard to imply in s. 90 apower to amend a certificate of offence, where s. 90 is irrelevant to ss.9(1) and 9.1 proceedings, which are important proceedings under theAct.

31 Where s. 90 is relevant is at a trial, where the offence notice is putbefore the court, or as in this case, on appeal, where the defendant ten-ders the offence notice as a piece of fresh evidence. In these two situa-tions, the presiding judge can compare the information on the two docu-ments and, if a variance exists, determine its impact. Trial judges havedisagreed on the impact of a variance resulting from an amendment tothe certificate of offence before it has been filed.

(d) Case law in the trial courts32 Several trial judges have concluded that an amendment to the certifi-

cate of offence before it has been filed with the court, but after the of-fence notice has been served on a defendant, invalidates the proceeding.Here is a sampling of five decisions reaching that conclusion. In none ofthem did the court analyze the effect of s. 90 of the Provincial OffencesAct.

33 In R. v. Pawar (2007), 36 M.P.L.R. (4th) 90 (Ont. S.C.J.), before thecertificate of offence was filed, it was amended by adding the day andmonth and correcting the year in which the alleged offence occurred.When the charge came up for trial, the justice of the peace quashed theticket before the defendant had entered a plea. The prosecutor (the Cityof Brampton) sought judicial review to quash the justice of the peace’s


ruling and remit the matter back to the provincial court. O’Connor J. dis-missed the application. At para. 28 of his reasons, he held:

Neither the P.O.A. nor the regulations appear to contemplate anamendment to the certificate made between service of the notice andfiling the certificate with the court. Thus the notice should containexactly the same personalized information as the certificate. The ac-cused must be aware of the information before the court. The require-ment that amendments be made only by the court guards against thepotential mischief of alterations prejudicial to the accused beingmade without the accused’s knowledge.

34 In R. v. Nandalall, [2008] O.J. No. 6034 (Ont. S.C.J.), Langdon J.followed Pawar. He held, at para. 33, that “a certificate of offence that isamended by the issuing officer, after he has served the offence notice,but before he has filed the certificate, is a nullity. A nullity cannot beamended” (footnotes omitted).

35 Similarly, in R. v. McGonigal, [1990] O.J. No. 3400 (Ont. C.J.),where the defendant was charged with the offence of “red light fail tostop” and the officer corrected the section number of the offence underthe Highway Traffic Act, Wolder J. held, at para. 8, “there is no provisionunder the Provincial Offences Act to amend the original document afterexecution or acceptance of service by the accused.” He held that theamendment had “nullified” the proceedings.

36 And in R. v. Tizzard, 2011 ONCJ 821, [2011] O.J. No. 6156 (Ont.C.J.), where the defendant had been charged with speeding, but the of-ficer had forgotten to specify the rate of speed on the certificate and thenadded it after, the defendant was convicted in his absence. But on appeal,Bellefontaine J. set aside the conviction and quashed the certificate ofoffence, because in his view, the amendment was “substantive” and de-prived the defendant of the ability to make an informed decision whetherto plead guilty or have a trial.

37 Finally, in R. v. Koza, [1995] O.J. No. 4278 (Ont. Prov. Div.), wherethe officer corrected the date on the certificate of offence after servingthe offence notice, Smith J. quashed the conviction. He held, at para. 29,“if anybody wants to play with the document after they have been gener-ated, they are not going to get the support of this judge”.

38 On the other side of the disagreement among trial judges are the deci-sions of Lampkin J. in R. v. Aristidou, 2007 ONCJ 250, [2007] O.J. No.2229 (Ont. C.J.) and Libman J. in R. v. Mirza, [2012] O.J. No. 6505(Ont. C.J.).


39 In Aristidou, the defendant was charged with speeding. He wasclocked at 93 kph in a 70 kph zone. The officer initially used his roadsidediscretion to reduce the speed to 85 kph. However, unhappy with thedefendant’s apparent rudeness, the officer then amended the certificate ofoffence to show a rate of 93 kph and correspondingly amended the setfine from $42.50 to $91.25. The justice of the peace concluded that theamendment was improper and convicted the defendant of speeding at 85kph. York Region appealed.

40 Lampkin J. correctly acknowledged that once the certificate of of-fence was filed with the court, it could only be amended by the court. Butimportantly, he also held that an officer could correct an error on thecertificate of offence before filing it with the court. He wrote, at para. 20:

But what if the provincial offences officer discovers an error prior tofiling the certificate in the office of the court or the laying of an in-formation and proceeds to correct the error before filing the certifi-cate or laying the information? The error may be as simple as themisspelling of a name. In my opinion the officer is entitled to makethe correction before the proceeding has been commenced by filingthe certificate or laying the information.

41 Nonetheless, Lampkin J. dismissed the appeal. He upheld the justiceof the peace, inferring either that she had rejected the officer’s evidencethat the defendant was speeding at 93 kph, or that she had used herpower to amend the certificate.

42 In Mirza, the defendant was charged with failing to stop at a red light.The officer, however, put the wrong section number on the certificate ofoffence - he had written the section of the Highway Traffic Act for speed-ing. After serving the offence notice, the certificate was amended bycrossing out the wrong section number and inserting the correct one. Thedefendant did not appear, and a justice of the peace convicted him in hisabsence.

43 The defendant appealed, and Libman J. dismissed his appeal. He dis-tinguished the cases of Pawar and Koza, holding that the amendments inthose cases were matters of substance. In the case before him, Libman J.,at paras. 71-72, held that the defendant had not been misled and the of-ficer simply corrected an obvious error.

Here, the effect of the argument as I apprehended it is that if an of-ficer noticed an obvious error on a ticket, such as the spelling of astreet or the offence, he or she would not be permitted to correct it togive logical effect to the argument made by Mr. Manoukian. I am


unable to accept that this is in accord with the intent of thislegislation.

44 Mirza and a companion case were appealed to this court: see R. v.Farah, 2015 ONCA 302, [2015] O.J. No. 2240 (Ont. C.A.). This courtallowed both appeals, relying on the prosecutor’s concession. But as thecourt noted in its brief endorsement, the concession was a limited one -that the certificates of offence, though “complete”, were not “regular” ontheir face, as there was a discrepancy between the short-form descriptionof the offence and the specified section number of the Highway TrafficAct. That concession, of course, has no application to the case before us,as the certificates of offence for Wadood and for Davis were both com-plete and regular on their face.

(e) My analysis45 The effect of s. 90 has to be assessed not only in the light of the

words of the section, but as well in the context of the scheme of the Actas a whole and its purpose.

46 Section 90 itself does not confer on an officer an express power toamend a certificate of offence. And I do not think it would be appropriateto imply a power to amend as the Municipality contends. The scheme ofthe Act suggests otherwise. Where the legislature and rule-makerswanted to provide for an amendment power, they have done so expresslyin ss. 34(1) and (2) of the statute and r. 15(1)2. And, as I said earlier, s.90 does not apply to certificates of offence considered in ss. 9(1) or 9.1proceedings.

47 However, for the prosecution to achieve its goal of allowing officersto correct minor errors or omissions on a certificate of offence, it is notnecessary to go as far as implying an amendment power in s. 90. In myopinion, officers are entitled to change information on a certificate ofoffence before filing with the court, even after serving a defendant withan offence notice. Nothing in the Act or the rules precludes officers fromdoing so. Proceedings against a defendant have not yet commenced. Andneither the Act nor the rules requires that the information on a certificateof offence be identical to the information on an offence notice before it isfiled with the court.


48 Allowing an officer to correct the certificate of offence before filing itwith the court furthers the purpose of the Provincial Offences Act andproceedings under it. The express purpose of the Act is set out s. 2(1):

2. (1) The purpose of this Act is to replace the summary convictionprocedure for the prosecution of provincial offences, including theprovisions adopted by reference to the Criminal Code (Canada), witha procedure that reflects the distinction between provincial offencesand criminal offences.

49 This court and other judges have elaborated on this purpose. The Actis intended to permit judges to decide cases on their merits, to deal effi-ciently and inexpensively with the province’s large volume of minor reg-ulatory offences, and to avoid having proceedings invalidated because oftechnical objections or irregularities having no prejudicial impact on adefendant. See, for example, London (City) v. Young, per Doherty J.A.and Ontario (Ministry of Labour) v. Discovery Place Ltd., [1996] O.J.No. 690 (Ont. Gen. Div.), varied on other grounds, [1997] O.J. No. 1887(Ont. C.A.).

50 If officers were not permitted to correct information on a certificate ofoffence before filing the certificate with the court, then many proceed-ings under ss. 9(1) or 9.1 would be quashed simply because the officermisspelled a name, left out a name of a municipality, or incorrectly wrotedown the year of the alleged offence. In all of these examples - and manyother examples of minor errors or omissions on certificates of offence -the defendant charged would not be misled. Quashing the certificate ofoffence because of minor errors that cause no prejudice would not pro-mote the fair administration of justice in the provincial court.

51 Defendants are protected if they were misled or prejudiced by achange to information on the certificate of offence that produced a vari-ance between the certificate and the offence notice. Where a variancecomes to light, s. 90 has an important role to play in promoting the pur-pose of the Act.

52 A variance could come to light in one of two situations: (1) at a con-tested trial, where the defendant puts the offence notice before the courtand invites the presiding judge to compare the information on the certifi-cate with the information on the offence notice; or (2) as in the presentcase, on appeal, after a conviction is registered against the defendantunder ss. 9.1 or 9(1) of the statute. In the latter situation, the appeal courthas wide power under s. 136 of the Provincial Offences Act to receivefurther evidence, which presumably could include the offence notice,


even though it was not before the justice of the peace in the defaultproceeding.

53 The judge, either at trial or on appeal, faced with a variance, wouldhave to determine its impact. If the variance had the potential to misleadthe defendant, then the judge would be justified under s. 90(2) in ad-journing the trial and even ordering the prosecution to pay costs. On ap-peal, the judge may be justified under s. 138 in reversing a conviction orvarying a penalty, or if “necessary to do so to satisfy the ends of justice”,ordering a new trial.

54 In his judgment in R. v. Montone, 2007 ONCJ 251, [2007] O.J. No.2230 (Ont. C.J.), at paras. 38-39, Lampkin J. gives a good example of acase where a defendant would be misled by a change to the certificate ofoffence and where a conviction would result in an injustice. An officerarrives at the scene of an accident and issues a certificate of offence forfollowing too closely. The officer then calls in to report the accident tohis staff sergeant who advises that the defendant should have beencharged with careless driving, a more serious offence with a greater mon-etary penalty and more demerit points. The officer then changes the cer-tificate of offence to record the more serious offence and files it with thecourt. The defendant, thinking he had been charged only with followingtoo closely, does not dispute the charge; the justice of the peace, in thedefendant’s absence, examines the certificate, concludes it is completeand regular on its face, and convicts the defendant of careless driving.The defendant is notified of the conviction and appeals. As Lampkin J.notes, upholding the conviction on these facts would not be just; the de-fendant would have been convicted of an offence for which he receivedno notice whatsoever.5

55 But against those cases - likely few - where the defendant has beenmisled or prejudiced by a change to the certificate of offence, are thosemany cases where the change may correct clerical errors or supply miss-ing information, and the defendant is not misled or prejudiced at all. Inthese cases, s. 90 preserves the validity of the proceeding.

5 Lampkin J. also notes, and the Regional Municipality accepts, that s. 124 (2)of the Act - “where an appeal is based on a defect in a conviction...judgmentshall not be given in favour of the appellant, but the court shall make an ordercuring the defect” - would not bar the appeal.


(2) Did s. 90 preclude the appeal judge from invalidating theconvictions of Wadood and Davis?

56 In Wadood’s case, the certificate of offence was changed before filingby adding the name of the municipality where the offence was alleged tohave occurred. In Davis’ case, the certificate of offence was changed bycorrecting the year in which the offence was alleged to have occurred. Inneither case was the defendant misled by the change. The appeal judgeso found when he observed “both were aware of the charge that they hadto answer”.

57 Yet the appeal judge erred in law, because he failed to give effect to,or even consider, s. 90 of the Provincial Offences Act. Section 90(1)(b) isa complete answer to the position of Wadood and Davis. The minor vari-ances between the certificates and the offence notices did not affect thevalidity of either proceeding or the conviction of each respondent.

E. CONCLUSION58 I would allow the Municipality’s appeal and restore the convictions

against Wadood and Davis.

Robert J. Sharpe J.A.:

I agree.

B.W. Miller J.A.:

I agree.

Appeal allowed.

R. v. Gauvreau 197

[Indexed as: R. v. Gauvreau]

Her Majesty the Queen (Appellant) and Luke Gauvreau(Respondent)

Alberta Court of Appeal

Docket: Calgary Appeal 1601-0274-A

2017 ABCA 74

Patricia Rowbotham, J.D. Bruce McDonald, Jo’Anne StrekafJJ.A.

Heard: February 22, 2017

Judgment: March 3, 2017

Criminal law –––– Offences — Impaired driving causing bodily harm —Sentencing –––– Accused was drinking at pub and when he left, his ability tooperate motor vehicle was impaired by alcohol — RCMP officer attempted traf-fic stop after accused’s vehicle passed semi- trailer truck on highway at 204km/h in 110 km/h zone — Accused approached exit ramp, but failed to negotiateturn due to speed that was sufficient to vault his vehicle through air twice — Allfour of accused’s passengers were injured — Accused fled without attending tohis passengers and evaded police before surrendering — Accused pleaded guiltyto impaired driving causing bodily harm — Considering accused’s lack of crimi-nal record, favourable pre-sentence report, his employer’s reference letter, hisacceptance of responsibility, and his expression of remorse, sentencing judgereduced 12-month sentence by 3 months to account for early guilty plea andsteps he had taken since offence — Crown appealed nine-month sentence of im-prisonment — Appeal allowed — When there are reviewable errors that haveimpact on sentence, appellate court cannot intervene unless sentence is demon-strably unfit — Sentencing judge’s approach in relying on rigid framework pro-posed in dissenting opinion in R. v. Rossi could not be endorsed — He double-counted guilty plea and steps taken by accused as mitigating factors, and under-emphasized his fleeing scene as aggravating factor — Both were reviewable er-rors that impacted sentence because they substantially affected proportionalityanalysis — As result, sentence was demonstrably unfit — While Crown did notpursue charges of leaving scene and evading police, they were aggravating fac-tors — Accused’s conduct not only deprived his victims of help, but also de-prived police of ability to determine level of his impairment — His driving wasvery dangerous — This was serious offence for which principle sentencingobjectives were denunciation and deterrence — Accused’s moral blameworthi-ness was high — Fit sentence was 15 months’ imprisonment.


Criminal law –––– Post-trial procedure — Appeal from sentence —Grounds — Error in principle –––– Accused was drinking at pub and when heleft, his ability to operate motor vehicle was impaired by alcohol — RCMP of-ficer attempted traffic stop after accused’s vehicle passed semi- trailer truck onhighway at 204 km/h in 110 km/h zone — Accused approached exit ramp, butfailed to negotiate turn due to speed that was sufficient to vault his vehiclethrough air twice — All four of accused’s passengers were injured — Accusedfled without attending to his passengers and evaded police before surrender-ing — Accused pleaded guilty to impaired driving causing bodily harm — Con-sidering accused’s lack of criminal record, favourable pre-sentence report, hisemployer’s reference letter, his acceptance of responsibility, and his expressionof remorse, sentencing judge reduced 12-month sentence by 3 months to accountfor early guilty plea and steps he had taken since offence — Crown appealednine-month sentence of imprisonment — Appeal allowed — When there are re-viewable errors that have impact on sentence, appellate court cannot interveneunless sentence is demonstrably unfit — Sentencing judge’s approach in relyingon rigid framework proposed in dissenting opinion in R. v. Rossi could not beendorsed — He double-counted guilty plea and steps taken by accused as miti-gating factors, and underemphasized his fleeing scene as aggravating factor —Both were reviewable errors that impacted sentence because they substantiallyaffected proportionality analysis — As result, sentence was demonstrably un-fit — While Crown did not pursue charges of leaving scene and evading police,they were aggravating factors — Accused’s conduct not only deprived his vic-tims of help, but also deprived police of ability to determine level of his impair-ment — His driving was very dangerous — This was serious offence for whichprinciple sentencing objectives were denunciation and deterrence — Accused’smoral blameworthiness was high — Fit sentence was 15 months’ imprisonment.

Cases considered:

R. c. Lacasse (2015), 2015 SCC 64, 2015 CSC 64, 2015 CarswellQue 11715,2015 CarswellQue 11716, [2015] S.C.J. No. 64, [2015] A.C.S. No. 64, 86M.V.R. (6th) 1, 24 C.R. (7th) 225, (sub nom. R. v. Lacasse) 478 N.R. 319,[2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, 396 D.L.R. (4th) 214(S.C.C.) — followed

R. v. Andrew (1994), 91 C.C.C. (3d) 97, 46 B.C.A.C. 299, 75 W.A.C. 299, 6M.V.R. (3d) 293, 1994 CarswellBC 563, [1994] B.C.J. No. 1456 (B.C.C.A.) — followed

R. v. Currell (2010), 2010 CarswellOnt 9444, [2010] O.J. No. 5791 (Ont.S.C.J.) — considered

R. v. Currell (2010), 2010 ONCA 826, 2010 CarswellOnt 9268, [2010] O.J. No.5228 (Ont. C.A.) — referred to

R. v. Dawad (2014), 2014 ABCA 240, 2014 CarswellAlta 1217, [2014] A.J. No.775, 65 M.V.R. (6th) 174, 577 A.R. 373, 613 W.A.C. 373 (Alta. C.A.) —followed

R. v. Gauvreau Per curiam 199

R. v. M. (C.A.) (1996), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73B.C.A.C. 81, 120 W.A.C. 81, [1996] 1 S.C.R. 500, 1996 CarswellBC 1000,1996 CarswellBC 1000F, [1996] S.C.J. No. 28, EYB 1996-67066(S.C.C.) — considered

R. v. Rossi (2016), 2016 ABCA 43, 2016 CarswellAlta 199, [2016] A.J. No.158, 612 A.R. 183, 662 W.A.C. 183, 95 M.V.R. (6th) 196, 34 Alta. L.R.(6th) 255 (Alta. C.A.) — considered


Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 249.1(4)(a) [en. 2000, c. 2, s. 1] — considereds. 252(1.2) [en. 1999, c. 32, s. 1] — considereds. 255(2) — considered

APPEAL by Crown from sentence imposed for impaired driving causing bodilyharm.

J. Morgan, for AppellantT. Foster, Q.C., for Respondent

Per curiam:

1 The Crown appeals a nine–month sentence of imprisonment imposedfor impaired driving causing bodily harm pursuant to section 255(2) ofthe Criminal Code, RSC 1985, c C–46.

2 We allow the appeal and impose a sentence of imprisonment of fif-teen months. We affirm the victim fine surcharge and the three year driv-ing prohibition.

I. Background3 The agreed statement of facts includes the following. The respondent

was driving home on Highway 1 near Canmore, Alberta after consumingalcohol at a pub. He had four passengers in his vehicle. When he left thepub, his ability to operate a motor vehicle was impaired by alcohol.

4 A RCMP officer observed the respondent’s vehicle passing a semi–trailer truck at 204 kilometers per hour in a 110 km/h zone. The officeractivated his emergency lights and attempted a traffic stop. The respon-dent acknowledged to his passengers that the RCMP was attempting tostop him. He did not slow down but, rather, approached an exit ramp.Two signs on the ramp indicated that speeds of 80 km/h then 30 km/h


were recommended. The respondent braked but failed to negotiate theturn to the exit ramp. The vehicle was travelling so fast that rather thanmake the turn, it entered the median of an intersecting highway andvaulted 28.5 meters through the air landing on the far side of the high-way. The vehicle became airborne a second time (eight meters) beforeimpacting a hill on the east side of the highway. Environmental and roadconditions were not a factor.

5 Data collected from the vehicle indicated that five seconds prior toimpact the vehicle was travelling at 179 kilometres per hour and thebrakes were fully engaged. At that speed a driver is “outside of his head-lights” meaning he is travelling so fast that if there is something on theroad, he would not be able to react to it in time.

6 All four passengers were injured. One passenger sustained soft tissueinjuries to his neck and back requiring a number of chiropractic appoint-ments. Another had multiple broken ribs, a collapsed lung, bruising toher face and shoulders, soft tissue injuries to her tailbone making walk-ing very difficult for the first few weeks post–incident. A third suffered abroken orbital bone and soft tissue injuries. The fourth had a brokennose, soft tissue injuries to his ankle and knee, chest soreness, bruising tohis tibia and shin. Two of the four passengers provided victim impactstatements describing depression and the effect of the injuries on theirwork and personal lives.

7 The respondent was not injured and fled without attending to his pas-sengers. The RCMP and emergency services assisted the passengers whowere taken to the hospital for treatment. The RCMP attempted to appre-hend the respondent. When RCMP contacted the respondent by cellulartelephone the respondent indicated that he was at home, and he was toldthat the RCMP would attend there shortly. A sniffer dog tracked the re-spondent to the residential complex where he lived. The RCMP searchedhis home but the respondent was not there.

8 Seventeen hours after the accident, the respondent surrendered to po-lice. He subsequently entered a guilty plea to one count of impaired driv-ing causing bodily harm that encompassed all four passengers. TheCrown did not pursue four other charges associated with evading the po-lice (section 249.1(4)(a)) and leaving the scene of the accident and fail-ing to offer assistance to an injured person (section 252(1.2)).

9 The respondent was 31 years old at the time of the offence. He has nocriminal record. He is fully employed and had a positive pre–sentencereport.


II. Sentencing Decision (Unreported)10 The Crown sought a sentence of 18 to 24 months’ imprisonment. De-

fence counsel argued for a 90–day intermittent sentence with a period ofprobation.

11 The sentencing judge found that the respondent’s degree of responsi-bility was high. The offence was serious, he ignored the police, he ig-nored the pleas of his passengers to stop, and he left the scene of theaccident. Additionally, given that deterrence and denunciation are domi-nant sentencing factors in cases involving vehicles and alcohol, the sen-tencing judge held that incarceration was necessary.

12 The sentencing judge stated that the sentence proposed by the Crownwas not unreasonable. However, relying on the dissenting reasons in R.v. Rossi, 2016 ABCA 43, 612 A.R. 183 (Alta. C.A.) he found that theoffence fell into the “more egregious” category. In crafting the sentence,the sentencing judge considered the respondent’s lack of a prior criminalrecord, the favourable pre–sentence report, his employer’s reference let-ter, his expression of remorse at the sentencing hearing, his acceptance ofresponsibility for his criminal behaviour “virtually from the outset”, andthat he had taken “significant steps to restore his relations in thecommunity”.

13 The sentencing judge concluded that 12 months’ imprisonment, thelowest available in the “more egregious” category, was appropriate. Hethen reduced it by three months to account for the respondent’s early andtimely guilty plea and the positive steps outlined in the pre–sentence re-port. The final sentence was nine months’ imprisonment and a three–yeardriving prohibition.

III. Grounds of Appeal and Standard of Review14 The Crown appeals the sentence on two grounds:

i. The sentencing judge erred in the identification and assessment ofthe applicable mitigating and aggravating circumstances, leadingto a distorted view of proportionality.

ii. The sentence imposed is demonstrably unfit.15 The Supreme Court “has on many occasions noted the importance of

giving wide latitude to sentencing judges. Since they have, inter alia, theadvantage of having heard and seen the witnesses, sentencing judges arein the best position to determine, having regard to the circumstances, ajust and appropriate sentence that is consistent with the objectives of the


Criminal Code. Ultimately, except where a sentencing judge makes anerror of law or an error in principle that has an impact on the sentence, anappellate court may not vary the sentence unless it is demonstrably un-fit.”: R. c. Lacasse, 2015 SCC 64 (S.C.C.) (headnote), [2015] 3 S.C.R.1089 (S.C.C.).

IV. Discussion

R. v. Rossi16 The sentencing judge’s approach (with which both counsel agreed)

was to categorize the offence in accordance with the dissenting opinionin Rossi. That opinion creates three categories of impaired driving caus-ing bodily harm: least egregious, more egregious and most egregious,and sets ranges of sentence for each category. The sentencing judge char-acterized this offence as in the “more egregious” category. The rangeproposed by the dissent in Rossi for this category is 12 months to fouryears. The sentencing judge imposed the lowest sentence in that category(12 months), and then deducted three months for the guilty plea and thesteps taken by the respondent since the offence.

17 The Crown submits, “reliance by all parties [and the sentencingjudge] on the dissenting reasons [in Rossi] creates some challenges.”This is an understatement. We do not and cannot endorse the approachadvocated by the dissent in Rossi. Parliament has not adopted sentencing“grids”. The application of the rigid framework proposed in the Rossidissent fetters the proportionality analysis required by the Criminal Codeand the Supreme Court’s decision in R. v. M. (C.A.), [1996] 1 S.C.R.500, 105 C.C.C. (3d) 327 (S.C.C.).“The overarching duty of a sentencingjudge is to draw upon all the legitimate principles of sentencing to deter-mine a just and appropriate sentence which reflects the gravity of theoffence committed and the moral blameworthiness of the offender.”: ibidat para 82.

18 No matter how thoughtfully crafted, there will be factors that werenot included as defining characteristics in the rigid framework proposedby the dissent in Rossi which would have been considered in the propor-tionality analysis. For example, here there was no blood–alcohol readingwhereas very specific and bright–line blood–alcohol readings are themain defining characteristic of the dissenting judge’s Rossi framework.

19 To be clear, reliance on the dissent in Rossi was not raised as aground of appeal and we do not decide this appeal based upon the sen-tencing judge’s adoption of it. However, the dissent in Rossi is not law in


Alberta and to rely upon it, depending upon the circumstances, may wellconstitute reviewable error.

20 Nevertheless, the sentencing judge made two reviewable errors. First,he double counted the guilty plea and the steps taken by the respondentsince the offence as mitigating factors. Second, although the sentencingjudge made brief reference to the respondent fleeing the scene, he under-emphasized this as an aggravating factor. These two errors resulted in asentence that was demonstrably unfit.

Mitigating Factors21 The sentencing judge did not separately set out the mitigating factors

but these can be found in his reasons at Transcript 45/23–31 (withemphasis):

. . .as is clear from the presentence report, the offender’s employerreference letter, and the offender’s expression of remorse made at thesentencing hearing. Mr. Gauvreau has accepted responsibility fromthe outset –– virtually from the outset for his criminal behaviour andhas taken significant steps to restore his relations in the community.

Therefore, I find that a sentence of 12 months’ imprisonment, thelowest available in the more egregious category, is appropriate. Thatamount is reduced by three months to take into account the of-fender’s early and timely guilty plea and the steps that he has takenas outlined in the presentence report.

22 The Crown suggests that the sentencing judge erred when he referredto the respondent’s “significant steps to restore his relations in the com-munity”. While the conclusion is a stretch, given that all the respondentdid was return to work where he received an award as a valued em-ployee, we do not find this statement to be a reviewable error.

23 The sentencing judge identified four mitigating factors: the expres-sion of remorse, the reference letter from the employer, the acceptance ofresponsibility from the outset and the “significant steps”. The acceptanceof responsibility is the plea of guilty, and the sentencing judge had al-ready considered the steps taken by the respondent after the offence inarriving at the 12 month sentence. Double counting these factors to arriveat a nine–month sentence is a reviewable error.

Aggravating Factors24 The aggravating factors were not separately delineated nor described

as aggravating but the sentencing judge did refer to them in his discus-


sion of the respondent’s degree of responsibility. He said: “the offence isserious and given the facts that the offender ignored the police responseto his driving, ignored the pleas of the complainants to stop, and the factthat he left the scene, the offender’s degree of responsibility as a result ishigh”: Transcript at 44/26–29.

25 The Crown submits that: “[o]verall the approach to the aggravatingfactors suggests a failure to adequately define proportionality” such thatthe reasoning “cannot withstand scrutiny”.

26 We agree. While the Crown did not pursue the charge of leaving thescene and evading the police, they are aggravating factors. The respon-dent was uninjured. His four passengers were injured. He did not remainat the scene to determine how seriously they were injured or to renderassistance. He walked away. He told the police when they called that hewas at home but left before they arrived. The respondent’s conduct notonly deprived his victims of help but also deprived the police of the abil-ity to determine the level of his impairment. Other than the passing refer-ence quoted above, the sentencing judge failed to assess the aggravatingeffect of the respondent’s conduct or increase the sentence because of it.

Fitness of Sentence27 Lacasse reminds us that even when there are reviewable errors, an

appellate court cannot intervene unless the errors have an impact on sen-tence. Both errors impact this sentence because they substantially affectthe proportionality analysis. In the result, we sentence afresh. In so doingwe acknowledge the letter from the Lethbridge Correctional Centrewhich describes the respondent as a model inmate, with great work ethic.

28 The essential elements of this offence are three–fold: driving whileimpaired, the impairment is causally connected to a collision causingbodily harm and bodily harm was caused by the collision: see generallyR. v. Andrew (1994), 46 B.C.A.C. 299, 91 C.C.C. (3d) 97 (B.C. C.A.). Incrafting a fit sentence we must have regard to the level of impairment,the driving and the injuries suffered by the victims.

29 As to the level of impairment, we can only rely on the agreed factswhich simply state that when the respondent left the pub his ability tooperate a motor vehicle was impaired by alcohol. It would be improperto speculate about the level of impairment in the absence of any evi-dence. The driving however was very dangerous. The RCMP “clocked”the respondent’s vehicle at 204 km/hr in a 110km/hr zone. He ap-proached an exit ramp at 179 km/hr (knowing that the police had ob-


served his vehicle). He was travelling “outside his headlights”. The speedwas sufficient to vault the vehicle, not once but twice. Although the inju-ries were not catastrophic, four people were injured and two were stillsuffering the effects at the date of the sentencing.

30 We were referred to a number of cases from this jurisdiction andothers. The cases confirm that there is a broad range of sentence for thisoffence; from a 90–day intermittent sentence to the sentence sought bythe Crown, 18 to 24 months. We cannot sentence the respondent for theoffence of leaving the scene but we observe that when an offender isconvicted of the separate offence of fleeing the scene a court has im-posed a consecutive sentence of six months: R. v. Currell, 2010 Cars-wellOnt 9444 (Ont. S.C.J.), aff’d 2010 ONCA 826 (Ont. C.A.). Two de-cisions of this court support a sentence in the range of 12 to 18 monthswithout the aggravating factor of leaving the scene. The majority in Rossiconcluded that a fit sentence was at least 12 months when the 19–yearold offender who had pleaded guilty, had a blood–alcohol reading of 132mg%, fell asleep or passed out and drifted over oncoming lanes of trafficbefore striking a tree. Three passengers were injured; one passenger whowas not wearing a seatbelt required multiple surgeries and was in acoma. (A 90–day sentence was upheld for reasons unrelated to fitness.)Rossi did not flee the scene and the driving was less egregious.

31 In R. v. Dawad, 2014 ABCA 240, 577 A.R. 373 (Alta. C.A.) the21–year old offender pleaded guilty. He had been drinking and lost con-trol of his vehicle on a road that was snow and ice covered and in poorwinter driving condition. The offender’s blood–alcohol content was 128mg%. He was injured as was his 11–year old cousin who was very se-verely and permanently injured. This court concluded that a fit sentencewould have been 15 to 18 months. However, given other circumstances(the over two and half year delay in sentencing and the considerable re-morse over the permanent injury to the offender’s cousin), a 90–day in-termittent sentence was upheld.

32 As emphasized in Dawad:Drunk driving is not a mere regulatory offence; it is a true crime . . ..It follows that members of the public who recklessly choose to drinkand drive expose themselves to a substantial term of imprisonment.That said, the specific sentence in each such case will turn on the mixof aggravating and mitigating factors. . ..


V. Conclusion33 This is a serious offence for which the principle objective of sentenc-

ing is denunciation and deterrence, and in particular, the deterrence ofothers who drink and get behind the wheel of a vehicle putting manylives in danger. The moral blameworthiness of the respondent is high. Henot only drove while impaired and at a grossly excessive speed, he alsoleft his injured passengers at the scene and evaded the police. We doacknowledge as mitigating, the four factors relied upon by the sentencingjudge and referred to in paragraph 23 above. We conclude that a fit sen-tence for this offence and this offender is 15 months’ imprisonment. Weuphold the victim fine surcharge and the three year driving prohibition.

Appeal allowed.

Isinger v. B.C. (Superintendent of Motor Vehicles) 207

[Indexed as: Isinger v. British Columbia (Superintendent ofMotor Vehicles)]

Shawne Daniel Isinger (Appellant / Petitioner) and TheSuperintendent of Motor Vehicles (Respondent / Respondent)

Jeff Derkuch (Appellant / Petitioner) and The Superintendent ofMotor Vehicles (Respondent / Respondent)

British Columbia Court of Appeal

Docket: Vancouver CA43287, CA43288

2017 BCCA 81

Harris, Fenlon, Dickson JJ.A.

Heard: December 6, 2016

Judgment: February 22, 2017

Motor vehicles –––– Offences and penalties — Suspension of licence —Practice and procedure — Miscellaneous –––– Drivers each received immedi-ate roadside prohibition (IRP) which barred them from driving for 90 days —Each driver wished to challenge prohibition but missed seven day deadline toapply for review — Superintendent of Motor Vehicles refused drivers’ requestsfor extension on basis that he did not have jurisdiction to extend statutory timelimit — Chambers judge dismissed drivers’ petition for judicial review, findingthat superintendent’s interpretation of legislation was reasonable — Drivers ap-pealed — Appeal dismissed — Chambers judge did not consider herself boundto find superintendent’s interpretation reasonable because it had been found tobe so in previous decision — Chambers judge considered herself bound to fol-low court’s conclusion in previous decision that standard of review of superin-tendent’s decision was reasonableness and that deference was to be shown tosuperintendent’s interpretation of his home statute — Chambers judge squarelyaddressed case cited by drivers in her analysis and did not fail to give it suffi-cient weight — Wording used to impose seven day time limit to apply for ad-ministrative driving prohibitions (ADPs) was identical to wording used in rela-tion to IRPs, but superintendent had interpreted words as granting jurisdiction toextend time to apply for review of ADP — There were differences between twoschemes, which superintendent might reasonably have taken into account in in-terpreting statutory time limits applicable to each penalty — Argument that itwas unreasonable for superintendent to interpret same phrase as granting juris-diction to extend time limits for ADP and not IRP only assisted drivers if wordswere capable of bearing only one reasonable interpretation.


Motor vehicles –––– Offences and penalties — Suspension of licence —Practice and procedure — Judicial review — Procedural fairness –––– Driv-ers each received immediate roadside prohibition (IRP) which barred them fromdriving for 90 days — Each driver wished to challenge prohibition but missedseven day deadline to apply for review — Superintendent of Motor Vehicles re-fused drivers’ requests for extension on basis that he did not have jurisdiction toextend statutory time limit — Chambers judge dismissed drivers’ petition for ju-dicial review, finding that superintendent’s interpretation of legislation was rea-sonable — Drivers appealed — Appeal dismissed — Chambers judge did notconsider herself bound to find superintendent’s interpretation reasonable be-cause it had been found to be so in previous decision — Chambers judge consid-ered herself bound to follow court’s conclusion in previous decision that stan-dard of review of superintendent’s decision was reasonableness and thatdeference was to be shown to superintendent’s interpretation of his home stat-ute — Chambers judge squarely addressed case cited by drivers in her analysisand did not fail to give it sufficient weight — Wording used to impose sevenday time limit to apply for administrative driving prohibitions (ADPs) was iden-tical to wording used in relation to IRPs, but superintendent had interpretedwords as granting jurisdiction to extend time to apply for review of ADP —There were differences between two schemes, which superintendent might rea-sonably have taken into account in interpreting statutory time limits applicableto each penalty — Argument that it was unreasonable for superintendent to in-terpret same phrase as granting jurisdiction to extend time limits for ADP andnot IRP only assisted drivers if words were capable of bearing only one reasona-ble interpretation.

Cases considered by Fenlon J.A.:

MacNeil v. British Columbia (Superintendent of Motor Vehicles) (2012), 2012BCCA 360, 2012 CarswellBC 2569, 36 B.C.L.R. (5th) 115, 353 D.L.R. (4th)705, 38 M.V.R. (6th) 27, 327 B.C.A.C. 118, 556 W.A.C. 118, 46 Admin.L.R. (5th) 141, [2012] B.C.J. No. 1795 (B.C. C.A.) — considered

R. v. Rapton (2011), 2011 BCCA 396, 2011 CarswellBC 2552, 19 M.V.R. (6th)178, (sub nom. Rapton v. Superintendent of Motor Vehicles (B.C.)) 311B.C.A.C. 176, (sub nom. Rapton v. Superintendent of Motor Vehicles (B.C.))529 W.A.C. 176 (B.C. C.A.) — considered

Savage v. British Columbia (Superintendent of Motor Vehicles) (2006), 2006BCCA 510, 2006 CarswellBC 2778, 38 M.V.R. (5th) 169, 60 B.C.L.R. (4th)11, 230 B.C.A.C. 298, 380 W.A.C. 298 (B.C. C.A.) — referred to

Segers v. British Columbia (Superintendent of Motor Vehicles) (1999), 1999CarswellBC 609, [1999] B.C.J. No. 666 (B.C. S.C.) — considered


Criminal Code, R.S.C. 1985, c. C-46Generally — referred to

Isinger v. B.C. (Superintendent of Motor Vehicles) Fenlon J.A. 209

s. 258 — consideredMotor Vehicle Act, R.S.B.C. 1996, c. 318

s. 94.1 [en. R.S.B.C. 1996, c. 318 (Supp.), s. 23] — consideredss. 94.1-94.6 [en. R.S.B.C. 1996, c. 318 (Supp.), s. 23] — referred tos. 94.3(e) [en. R.S.B.C. 1996, c. 318 (Supp.), s. 23] — considereds. 94.4 [en. R.S.B.C. 1996, c. 318 (Supp.), s. 23] — considereds. 94.4(1) [en. R.S.B.C. 1996, c. 318 (Supp.), s. 23] — considereds. 215.41 [en. 2010, c. 14, s. 19] — considereds. 215.41(3.1) [en. 2012, c. 26, s. 1(c)] — consideredss. 215.41-215.51 [en. 2010, c. 14, s. 19] — considereds. 215.43(1) [en. 2010, c. 14, s. 19] — considereds. 215.43(2.1) [en. 2012, c. 26, s. 3(c)] — considereds. 215.43(3) [en. 2010, c. 14, s. 19] — considereds. 215.48 [en. 2010, c. 14, s. 19] — considered

APPEAL by drivers of judgment reported at Isinger v. British Columbia(Superintendent of Motor Vehicles) (2015), 2015 BCSC 2220, 2015 CarswellBC3507, 92 M.V.R. (6th) 258, 1 Admin. L.R. (6th) 332 (B.C. S.C.), dismissingdrivers’ petitions for judicial review of decision of Superintendent of MotorVehicles.

K. Lee, for Appellant - CA43287S. Leamon, for Appellant - CA43288R. Mullett, for Respondents in both proceedings and Attorney General of British

Columbia

Fenlon J.A.:

INTRODUCTION1 The appellants Sean Daniel Isinger and Jeff Derkuch each received an

immediate roadside driving prohibition (“IRP”) which barred them fromdriving for 90 days. Each wished to challenge the prohibition but missedthe seven day deadline to apply for review. They asked the Superinten-dent of Motor Vehicles for an extension but he refused on the basis thathe did not have jurisdiction to extend the statutory time limit. These ap-peals challenge the finding of a chambers judge on judicial review thatthe Superintendent’s interpretation of the legislation was reasonable.

BACKGROUND2 The IRPs were issued under the Motor Vehicle Act, R.S.B.C. 1996, c.

318 (the “Act”) ss. 215.41 to 215.51. Those sections provide in part:215.41 . . .


(3.1) If, at any time or place on a highway or industrial road,

(a) a peace officer makes a demand to a driver under the Crimi-nal Code to provide a sample of breath for analysis by meansof an approved screening device and the approved screeningdevice registers a warn or a fail, and

(b) the peace officer has reasonable grounds to believe, as a re-sult of the analysis, that the driver’s ability to drive is affectedby alcohol,

the peace officer, or another peace officer, must,

(c) if the driver holds a valid licence or permit issued under thisAct, or a document issued in another jurisdiction that allowsthe driver to operate a motor vehicle, take possession of thedriver’s licence, permit or document if the driver has it in hisor her possession, and

(d) subject to section 215.42, serve on the driver a notice of driv-ing prohibition.

. . .

215.43 (1) If a person is served with a notice of driving prohibitionunder section 215.41 in circumstances where an approved screeningdevice registers a warn, the person is prohibited from driving for

(a) 3 days, in the case of a first prohibition,

(b) 7 days, in the case of a second prohibition, or

(c) 30 days, in the case of a subsequent prohibition.

(2.1) If a person is served with a notice of driving prohibition undersection 215.41 in circumstances where

(a) an approved screening device registers a fail, or

(b) the person refuses or fails to comply with a demand as de-scribed in section 215.41 (4),

the person is prohibited from driving for a period of 90 days.

(3) A driving prohibition under this section

(a) takes effect immediately on service of the notice of drivingprohibition under section 215.41, and

(b) unless revoked under this Act, continues in effect until theend of the last day of the driving prohibition as calculated inaccordance with subsection (3.1).

3 IRPs are also referred to as automatic roadside prohibitions or“ARPs”. For consistency, I will use IRP, the acronym used by the cham-bers judge.


4 The appellants’ circumstances are illustrative of the harsh conse-quences of inflexible statutory time limits. Each intended to seek a re-view of his driving prohibition, but through no fault of his own, missedthe deadline. The chambers judge described Mr. Derkuch’s circum-stances this way:

[9] Jeff Derkuch is an Alberta native. On May 20, 2015, he was is-sued with an IRP by a peace officer in British Columbia, pursuant tos. 215.41 of the MVA. Mr. Derkuch provided two breath samples intoan approved screening device at the roadside, both of which resultedin a “fail” reading.

[10] Mr. Derkuch did not agree with the fail, and believed he hadissues worthy of consideration on review by the Superintendent. Hehad bona fide intention of applying for review of the decision beforethe Superintendent.

[11] Mr. Derkuch returned to Calgary the next day, May 21, 2015,and retained counsel to review his driving prohibition. Regrettably,his lawyer was unaware of the filing deadlines, and failed to file for areview during the seven day period prescribed in the statute.

[12] On May 29, 2015, Mr. Derkuch contacted another counsel toseek a second legal opinion, who quickly sent an application for ex-tension of the time period to file an application for review to the of-fice of the Superintendent.

5 Mr. Isinger was issued an IRP on May 16, 2015. He refused to pro-vide a breath sample but acknowledged he had been drinking which wasa breach of a recognizance he had entered into not to consume alcohol.He was arrested for that breach and held in custody. Mr. Isinger wasreleased on May 27, 2015, after the seven day period to seek a reviewhad expired. He sent an application for review the day after his release,only five days beyond the time limit.

6 The provision governing applications for review of an IRP providesin part:

215.48 (1) A person may, within 7 days of being served with a noticeof driving prohibition under section 215.41, apply to the superinten-dent for a review of the driving prohibition by

(a) filing an application for review with the superintendent,

(b) paying to the superintendent the prescribed hearing fee, and

(c) if it has not been taken by the peace officer or sent to thesuperintendent under section 215.41, surrendering to the In-surance Corporation of British Columbia his or her licence orpermit to operate a motor vehicle unless the person completes


and files with the superintendent a statutory declaration stat-ing that the licence or permit has been lost, stolen ordestroyed.

7 On May 28, 2015, Mr. Isinger was told by a representative of theSuperintendent that extensions were no longer available. Mr. Derkuchreceived a brief letter from the Superintendent on July 15, 2015 advisingthat:

As of January 12, 2015, RoadSafetyBC no longer accepts applica-tions for an extension of the seven day period to apply for an IRPreview. The Motor Vehicle Act does not require RoadSafetyBC toaccept applications for review beyond seven days from the date theIRP was served.

ON JUDICIAL REVIEW8 The appellants sought judicial review of the Superintendent’s deci-

sions. They argued that the Superintendent’s interpretation of s. 215.48of the Act was unreasonable for two main reasons: first, because itamounted to a breach of procedural fairness; and second, because inSegers v. British Columbia (Superintendent of Motor Vehicles), [1999]B.C.J. No. 666 (B.C. S.C.), the court interpreted the same language inrelation to administrative driving prohibitions (“ADPs”) issued under s.94.1 of the Act as giving the Superintendent jurisdiction to extend thetime limit for applying for review.

9 In reasons indexed at 2015 BCSC 2220 (B.C. S.C.), the chambersjudge upheld the Superintendent’s decision, finding his interpretationthat the section did not give him the authority to extend the review dead-line to be reasonable. The chambers judge began by considering Segers:

[33] The petitioners submit that Segers should determine the Court’sreview of the Superintendent’s decision. Segers considered a slightlydifferent provision of the MVA that allows for administrative drivingprohibitions (MVA s. 94.1). However, the sections of the MVA con-sidered in Segers are very similar to the sections of the MVA relevantto this petition. As with the IRP, the administrative driving prohibi-tion served under s. 94.1 can suspend the driver’s license for a periodof 90 days and requires an application for review be filed withinseven days of the date of service of the driving prohibition. There isno provision in the MVA that provides for an extension of the time tofile for a review of a prohibition given under s. 94.1. In Segers, bothpetitioners submitted that there was a residual discretion on the partof the Superintendent to extend the seven day period.


[34] In Segers, Justice Melvin reviewed the legislation, in the ab-sence of a specific provision permitting the extension:

[8] These passages are important as the legislation underconsideration in relation to these petitions does not con-template extensions of time by the Superintendent withreference to the seven day provision in s. 94.4. The legis-lation does contemplate that certain steps “must” be takenat certain time intervals. Counsel argument for the Attor-ney General was that as the legislation is silent as to thejurisdiction of the Superintendent for this court to con-clude that there was a discretion to extend time would bean unwarranted amendment of clear, unequivocal statu-tory provisions. Counsel for the respondents further sub-mits that the whole legislative scheme is designed for aswift procedure. The review must be undertaken if the no-tice of application for review is made within seven days.The decision of the Superintendent must be given within21 days with power to extend under s. 94.6(4).

[35] At paragraph 11 of Segers, Melvin J. concluded that the Super-intendent has jurisdiction to extend the seven day period in the con-text of the administrative driving prohibition under s. 94.4 of theMVA. The court concluded:

[10] Nevertheless, I am of the view that fairness compelsa construction, absent any legislation specifically onpoint, that allows the Superintendent to exercise a discre-tion whether or not he will extend the seven day period.

[11] Relying on the language in Zutter [Zutter v. Councilof Human Rights (B.C.) (1995), 57 B.C.A.C.], I am satis-fied that the Superintendent has jurisdiction to extend theseven day period. In providing for a review, one must ac-cept that the Legislature wished to give drivers an oppor-tunity to make representations to relieve against the im-pact of suspension of a driver’s licence. There are anumber of scenarios that may occur making it impossibleto file a review within the seven day period. Obviously,injury or illness may interfere with a driver’s ability to filea review within the seven day limit. In my opinion, theSuperintendent has a discretion to extend the seven dayperiod where the circumstances warrant. This jurisdictionmay be used sparingly, in special or unusual circum-stances, and there may be a number of factors which theSuperintendent may wish to take into consideration in de-


ciding whether or not to exercise that discretion. [Empha-sis added.]

10 The chambers judge noted that although both ADPs and IRPs resultin a 90–day driving prohibition, IRPs under s. 215.41 carry additionalpenalties including a monetary fine and impoundment of the driver’s ve-hicle. She also noted the Superintendent continues to follow Segers andto permit drivers to file applications to extend the time to apply for areview of ADPs.

11 The chambers judge then turned to a decision of this Court, MacNeilv. British Columbia (Superintendent of Motor Vehicles), 2012 BCCA360 (B.C. C.A.):

[39] MacNeil was a decision from the British Columbia Court of Ap-peal considering the 24–hour prohibition from driving given pursuantto s. 215 of the MVA. As with the IRP and the administrative drivingprohibition, a driver served with the 24–hour prohibition must applyfor review within seven days under s. 215.1 of the MVA. Once again,the MVA does not contain any provision that allows an extension oftime to be sought to file a request for a review of a 24–prohibition.

. . .

[41] The court in MacNeil concluded that the power to extend thetime to file an appeal must be found in the statute. The court explic-itly rejected the argument that the Superintendent had the power toextend time because nothing the statute expressly dictated otherwise.Further, at paras. 42–46, the court cites multiple authorities for theproposition that the discretion to extend a time limit does not existsimply because the statute fails to explicitly prohibit it. In essence,silence does not equal permission. [Emphasis added.]

The chambers judge recognized that the 24–hour prohibition consideredin MacNeil is a far less serious penalty than the 90–day prohibition inissue before her but she concluded that she was bound by MacNeil andfollowed it (para. 42).

ON APPEAL12 The appellants contend the chambers judge erred in her application of

the reasonableness standard of review. In written argument, the appel-lants submitted the chambers judge fell into error because “she consid-ered herself bound by the decision in MacNeil”. In oral argument, theappellants also contended the chambers judge failed to recognize that theSuperintendent’s interpretation of s. 215.48 cannot be reasonable because


it contradicts his interpretation of the same language in s. 94.4 of theADP scheme. I will address each of these grounds of appeal.

1. Did the chambers judge err in concluding she was bound byMacNeil?

13 The appellants argue the chambers judge erred when she concludedMacNeil was binding upon her. The thrust of the appellants’ submissionis that the chambers judge should have distinguished MacNeil because itinvolved a significantly different scheme. That case involved a 24–hourdriving prohibition which this Court noted “is a relatively minor sanc-tion” (para. 49) compared to the 90–day driving prohibition at issue inthe present case. The appellants submit the chambers judge should havefollowed Segers which also involved a 90–day driving prohibition.

14 I would not accede to this ground of appeal for two reasons. First, inmy view the chambers judge did not consider herself bound to find theSuperintendent’s interpretation reasonable because it had been found tobe so in MacNeil. Rather, she considered herself bound to follow thecourt’s conclusion in MacNeil that the standard of review of the Superin-tendent’s decision is reasonableness, and that deference is to be shown tothe Superintendent’s interpretation of his home statute. This is apparentfrom the following passages in her reasons for judgment:

[48] It appears that this Court is bound by the decision in MacNeil toapply the standard of reasonableness to the Superintendent’s deci-sion. Further, the Courts in both Alberta Teachers’ Association andMacNeil confirmed that this Court should take a deferential approachto the Superintendent’s decision, given the issue at hand involves theinterpretation of the MVA. It is clear that given that this is an issue ofthe Superintendent’s interpretation of its home statute, this Courtshould be deferential to the Superintendent’s decision and apply thestandard of reasonableness. [Emphasis added.]

The chambers judge correctly framed the issue before her:[50] Therefore, the question before the Court is whether the Superin-tendent’s conclusion that they did not have the jurisdiction to grantextensions under s. 215.41 fell within the reasonable range ofoutcomes.

15 Second, the chambers judge squarely addressed Segers in her analy-sis. She considered the appellants’ argument that procedural fairnesscompelled her to follow Segers and indeed expressed the view that aseven day period “can be too short a window”, suggesting that the Legis-lature might wish to consider granting the Superintendent some discre-


tion to extend time in “extenuating circumstances such as those of Mr.Isinger and Mr. Derkuch” (para. 58). But she went on to conclude:

[68] . . . However, I find that I am compelled by the general princi-pals of judicial review set down by the Supreme Court of Canada andthe specific decision of the Court of Appeal of MacNeil to defer tothe Superintendent’s interpretation of their home statute. This inter-pretation is clearly reasonable. In my opinion, it is up to the Legisla-ture to amend the provisions of the MVA to create a fairer schemethat will account for the circumstances of individuals like Mr.Derkuch and Mr. Isinger. [Emphasis added.]

16 In my view, it cannot be said that the chambers judge blindly fol-lowed the interpretation accepted in MacNeil or failed to give sufficientweight to Segers. She conducted a thorough and thoughtful analysis ofthe reasonableness of the Superintendent’s interpretation. In doing so sheappropriately considered the holding in MacNeil (paras. 38–46) and R. v.Rapton, 2011 BCCA 396 (B.C. C.A.) (paras. 15–16) that the Superinten-dent has only the powers granted by statute. She also considered the dif-ferences between the schemes in issue in MacNeil and Segers and thecase before her. Ultimately she said:

[54] I agree with the petitioner’s submission that the penalty under anIRP is more severe than the 24 hour suspension at issue in MacNeil.This distinction in severity, however, is not significant enough to cir-cumvent the Court of Appeal’s ruling in MacNeil or render the Su-perintendent’s decision that no jurisdiction [exists] to extend the re-view period in the absence of legislative authority unreasonable. Inparticular, I cannot agree with the petitioner’s submission that “theanalysis in MacNeil centered around the minor nature of the sanctionwhen contrasted with the number of 24–Hour Prohibitions issued.”The analysis in MacNeil instead centres on the conclusion that theSuperintendent’s authority is limited to the powers assigned underthe MVA.

. . .

[56] Therefore, I conclude that the Superintendent’s interpretation ofthe MVA was reasonable. I find that both interpretations could be saidto fall within the reasonable range of outcomes. However, given thedeference to be accorded to the Superintendent, as dictated under theanalysis of Alberta Teachers’ Association and MacNeil, it is clearthat the Superintendent’s decision in this situation falls within thereasonable range of outcomes and is not unreasonable.

17 In my view, the chambers judge did not err in her consideration ofMacNeil and Segers.


2. Did the chambers judge err in finding the Superintendent’sinterpretation reasonable even though it contradicts theSuperintendent’s interpretation of the same words in anotherprovision of the Act?

18 The appellants argue the chambers judge erred in finding the Superin-tendent’s interpretation of s. 215.48 reasonable in light of the contradic-tory position taken by the same decision maker in relation to extensionsfor review of ADPs under s. 94.4. That section provides:

94.4 (1) A person may, within 7 days of being served with a notice ofdriving prohibition under section 94.1, apply to the superintendentfor a review of the driving prohibition by

(a) filing an application for review with the superintendent,

(b) paying to the superintendent the prescribed hearing fee, and

(c) if it has not been taken by the peace officer or sent to thesuperintendent under section 94.1, surrendering to the Insur-ance Corporation of British Columbia his or her licence orpermit to operate a motor vehicle unless the person completesand files with the superintendent a statutory declaration stat-ing that the licence or permit has been lost, stolen ordestroyed.

19 The wording used to impose a seven day time limit to apply for ADPreviews is identical to the wording used in relation to IRPs. The appel-lants ask how it can be reasonable for the Superintendent to interpret thesame words as granting jurisdiction to extend the time limit to apply fora review of an ADP but as not granting jurisdiction to extend the time toapply for review of an IRP.

20 The chambers judge did not directly address this argument because itwas not framed precisely this way before her. The argument was ad-dressed, however, in MacNeil. In that case the driver argued that sincethe Superintendent applied Segers to ADP extensions, he had to interpretthe same words the same way — as permitting extensions for review of24–hour prohibitions. This Court in MacNeil found the apparently con-tradictory interpretations to be reasonable:

[53] It was not unreasonable for the adjudicator to limit the applica-tion of Segers to 90–day prohibitions. Even though the language atissue in Segers is, for all practical purposes, identical to the languagein s. 215.1(1), the adjudicator is entitled to interpret her own homestatute and is not bound to follow the construction of a similar sec-tion by a court. Deference is owed to the adjudicator’s interpretation,which I have concluded, for the reasons given, is a reasonable one.


The issue of whether Segers is correctly decided is best left for a casewhere the decision is challenged directly.

21 MacNeil arguably identifies two bases on which conflicting interpre-tations of the same wording may be reasonable. First, there may be dif-ferences between the two schemes in issue which support a different in-terpretation; and second, it could be that the Superintendent’sinterpretation of the ADP provisions as permitting extensions is an un-reasonable interpretation, and not the other way around.

22 I begin by considering the differences between the ADP and IRPschemes. At first blush they appear very similar — both impose a90–day driving prohibition. Indeed, since an IRP carries with it the po-tential for greater penalties, including a fine and impoundment of thedriver’s car, it might be argued that it is all the more appropriate to pro-vide an extension to seek a review in circumstances where the drivermissed the deadline through no fault of his own. On closer examination,however, there are differences between the two schemes which the Su-perintendent might reasonably have taken into account in interpreting thestatutory time limits applicable to each penalty.

23 An ADP is governed by ss. 94.1 through 94.6 of the Act. It was thefirst regulatory driving prohibition enacted in the province, coming intoforce on May 5, 1997: Savage v. British Columbia (Superintendent ofMotor Vehicles), 2006 BCCA 510 (B.C. C.A.) at para. 3. While both anIRP and an ADP begin with a police officer using an Approved Screen-ing Device (“ASD”) at the roadside, s. 94.3(e) requires a peace officerserving an ADP to provide to the Superintendent “a copy of any certifi-cate of analysis under s. 258 of the Criminal Code”. When a police of-ficer chooses to issue an ADP, he takes the driver to the police station fortesting using a breath alcohol instrument such as a Datamaster or Intox-ilyzer that meets the requirements of s. 258 of the Criminal Code. If thedriver’s blood alcohol content is over 0.08, he or she may be served withan ADP but may also be charged under the Criminal Code.

24 In contrast, an IRP is issued using only an ASD which registers a“pass”, “warn”, or “fail”. An exact blood alcohol content reading is notprovided and the ASD evidence cannot be used to support a CriminalCode conviction. In short, the evidence a driver is compelled to giveunder the ADP scheme puts the driver in jeopardy of a criminal prosecu-tion in addition to or instead of the 90–day driving prohibition.

25 Further, an ADP does not take effect immediately as is the case for anIRP. The 90–day prohibition under an ADP begins to run 21 days after

Isinger v. B.C. (Superintendent of Motor Vehicles) Dickson J.A. 219

the driver is served with the notice of ADP. As a result, it is more likelythat an extension could be granted and a review conducted before thedriver has “served” most of the prohibition.

26 In addition, IRPs can involve lesser penalties than the 90–day prohi-bition issued to the appellants. The scheme provides for escalating sus-pensions of 3, 7 and 30 days for “warn” readings falling short of a “fail”.

27 Finally, police officers issue IRPs far more frequently than ADPs. In2013, 1,359 ADPs were served compared to 19,379 IRPs; in 2014 thetotals were 1,400 and 18,805. The concern identified in MacNeil (at para.50) that the system could be overwhelmed by applications for extensionscould arguably be a factor in relation to IRP extensions as well.

28 I turn now to the argument that, despite any differences between thetwo schemes, it cannot be reasonable for the Superintendent to interpretthe same phrase as granting jurisdiction to extend time limits for a90–day ADP and not granting jurisdiction to extend time limits for a90–day IRP. There is an attractive logic to the appellants’ submissionthat it is unreasonable for the Superintendent to interpret the same wordsin two different ways. However, that argument assists the appellants onlyif the words are capable of bearing but one reasonable interpretation —in effect there is a “correct” interpretation — and it is the interpretationapplied to ADPs in Segers.

29 In the present appeals, only the reasonableness of the Superinten-dent’s interpretation of s. 215.48 of the IRP scheme is squarely beforethe court. As stated in MacNeil, the question of whether Segers was cor-rectly decided “is best left for a case where the decision is challengeddirectly.” On the record before us, therefore, I would not accede to thesecond ground of appeal.

CONCLUSION30 For the reasons given, I would dismiss the appeals.

Harris J.A.:

I agree

Dickson J.A.:

I agree

Appeal dismissed.


[Indexed as: Downer v. Pitcher]

ROGER DOWNER (APPELLANT) AND ELIZABETHPITCHER (RESPONDENT)

Newfoundland and Labrador Court of Appeal

Docket: 201301H0053

2017 NLCA 13

J.D. Green C.J.N.L., M.F. Harrington, L.R. Hoegg JJ.A.



Equity –––– Relief from unconscionable transactions — Unconscionable orimprovident transactions — Inequality of bargaining power –––– Plaintiff’staxicab was rear-ended by defendant’s vehicle — Defendant agreed to pay forcost of repairs of taxicab and to pay $300 as compensation for income lost whiletaxicab was out of service — In return and without legal advice, plaintiff signedrelease that defendant had prepared — After developing symptoms of soft tissueinjury, plaintiff brought action against defendant — Trial judge concluded thatrelease purported to bar personal injury claims but found that it was unconscion-able and unenforceable — Defendant appealed — Appeal allowed — Whileplaintiff thought she was only signing away right to claim for vehicle repairs andloss of income during such repairs, defendant did not make any overt representa-tion to plaintiff on whether release covered or did not cover personal injuryclaims — There was no suggestion that plaintiff, self-employed woman earningliving by driving taxicab, was so unsophisticated that she was incapable of look-ing out for her own interests — Plaintiff’s failure to read release was her ownchoice — There was no evidence that defendant knew or should have knownthat plaintiff believed release did not cover personal injury claims — There wasno evidence that, because of some special disadvantage, plaintiff was unable toprotect interests by reading release — Mere inequality of information as to re-spective legal positions relative to terms of transaction, its consequences or al-ternatives was not sufficient to establish special disadvantages — Plaintiff’s po-tential loss of income for short time that vehicle would be out of service was notof such magnitude that she was placed at significant disadvantage that com-pelled her to agree to disadvantageous terms — There was no degree of vulnera-bility present that could have been exploited by defendant — Defendant did notunfairly or unconscionably take advantage of any inequality — Ordinary com-mon law policies of sanctity of contract and permitting self-interested bargainingwere not displaced by any equity based on unconscionability — Defendantcould rely on release in defending plaintiff’s action.

Downer v. Pitcher 221

Cases considered:

Albert Pearl (Management) Ltd. v. J.D.F. Builders Ltd. (1974), [1975] 2 S.C.R.846, 3 N.R. 215, 49 D.L.R. (3d) 422, 1974 CarswellOnt 248, 1974 Carswell-Ont 248F (S.C.C.) — referred to

Bhasin v. Hrynew (2014), 2014 SCC 71, 2014 CSC 71, 2014 CarswellAlta 2046,2014 CarswellAlta 2047, [2014] 11 W.W.R. 641, 27 B.L.R. (5th) 1, 464N.R. 254, 379 D.L.R. (4th) 385, 20 C.C.E.L. (4th) 1, [2014] S.C.J. No. 71,[2014] 3 S.C.R. 494, 584 A.R. 6, 623 W.A.C. 6, 4 Alta. L.R. (6th) 219(S.C.C.) — followed

Cain v. Clarica Life Insurance Co. (2005), 2005 ABCA 437, 2005 CarswellAlta1871, 2006 C.L.L.C. 210-001, 47 C.C.E.L. (3d) 70, 54 Alta. L.R. (4th) 146,263 D.L.R. (4th) 368, [2006] 7 W.W.R. 111, 384 A.R. 11, 367 W.A.C. 11,[2005] A.J. No. 1743 (Alta. C.A.) — followed

Campbell v. Campbell (1990), 83 Nfld. & P.E.I.R. 340, (sub nom. Campbell v.Campbell (No. 2)) 260 A.P.R. 340, 1990 CarswellNfld 156, [1990] N.J. No.201 (Nfld. U.F.C.) — referred to

Chesterfield v. Janssen (1751), 2 Ves. Sen. 125 (Eng. Ch.) — referred toDyck v. Manitoba Snowmobile Assn. Inc. (1985), [1985] 1 S.C.R. 589, [1985] 4

W.W.R. 319, 18 D.L.R. (4th) 635, 58 N.R. 144, 35 Man. R. (2d) 22, 32C.C.L.T. 153, 32 M.V.R. 192, 1985 CarswellMan 180, 1985 CarswellMan381, [1985] S.C.J. No. 34 (S.C.C.) — considered

Eagle Construction Ltd. v. Chaytor (1986), 58 Nfld. & P.E.I.R. 23, 174 A.P.R.23, 1986 CarswellNfld 82 (Nfld. T.D.) — referred to

Floyd v. Couture (2004), 2004 ABQB 238, 2004 CarswellAlta 416, 349 A.R. 1,29 Alta. L.R. (4th) 296, 15 C.C.L.I. (4th) 208, [2005] 3 W.W.R. 287, [2004]A.J. No. 377 (Alta. Q.B.) — referred to

Fry v. Lane (1888), 40 Ch. D. 312 (Eng. Ch. Div.) — consideredHarry v. Kreutziger (1978), 9 B.C.L.R. 166, 95 D.L.R. (3d) 231, [1978] B.C.J.

No. 1318, 1978 CarswellBC 674 (B.C. C.A.) — consideredHodgkinson v. Simms (1994), [1994] 9 W.W.R. 609, 49 B.C.A.C. 1, 80 W.A.C.

1, 22 C.C.L.T. (2d) 1, 16 B.L.R. (2d) 1, 6 C.C.L.S. 1, 97 B.C.L.R. (2d) 1,117 D.L.R. (4th) 161, 171 N.R. 245, 57 C.P.R. (3d) 1, 5 E.T.R. (2d) 1,[1994] 3 S.C.R. 377, 95 D.T.C. 5135, 1994 CarswellBC 438, 1994 Car-swellBC 1245, [1994] S.C.J. No. 84, EYB 1994-67089 (S.C.C.) —considered

Howell v. Reitmans (Canada) Ltd. (2002), 2002 CarswellNfld 196, 215 Nfld. &P.E.I.R. 240, 644 A.P.R. 240, 21 C.C.E.L. (3d) 208, [2002] N.J. No. 194(Nfld. T.D.) — followed

Lloyd’s Bank v. Bundy (1974), [1975] Q.B. 326, [1974] 3 All E.R. 757, [1974] 2Lloyd’s Rep. 366, [1974] 3 W.L.R. 501, 118 Sol. Jo. 714 (Eng. C.A.) —considered

Lono v. Lono (1984), 52 Nfld. & P.E.I.R. 208, 153 A.P.R. 208, 1984 Car-swellNfld 240 (Nfld. U.F.C.) — referred to


Miglin v. Miglin (2003), 2003 SCC 24, 2003 CarswellOnt 1374, 2003 Carswell-Ont 1375, [2003] S.C.J. No. 21, 34 R.F.L. (5th) 255, 224 D.L.R. (4th) 193,302 N.R. 201, 171 O.A.C. 201, [2003] 1 S.C.R. 303, REJB 2003-40012, 66O.R. (3d) 736, 2003 CSC 24 (S.C.C.) — followed

Morrison v. Coast Finance Ltd. (1965), 54 W.W.R. 257, 55 D.L.R. (2d) 710,1965 CarswellBC 140, [1965] B.C.J. No. 178 (B.C. C.A.) — referred to

Mushrow v. Mushrow (1986), 4 R.F.L. (3d) 82, 60 Nfld. & P.E.I.R. 305, 181A.P.R. 305, 1986 CarswellNfld 14 (Nfld. C.A.) — referred to

National Westminster Bank plc v. Morgan (1985), [1985] 1 All E.R. 821, [1985]1 A.C. 686, [1985] 2 W.L.R. 588, [1985] F.L.R. 266, 17 H.L.R. 360, 129Sol. Jo. 205, 82 L.S.G. 1485, 60 N.R. 384, [1985] H.L.J. No. 13, [1985]EWCA Civ 686 (U.K. H.L.) — referred to

Norberg v. Wynrib (1992), [1992] 4 W.W.R. 577, [1992] 2 S.C.R. 226, 92D.L.R. (4th) 449, 12 C.C.L.T. (2d) 1, 9 B.C.A.C. 1, 19 W.A.C. 1, 138 N.R.81, 68 B.C.L.R. (2d) 29, [1992] S.C.J. No. 60, 1992 CarswellBC 155, [1992]R.R.A. 668, 1992 CarswellBC 907, EYB 1992-67036 (S.C.C.) —considered

R. v. Hart (2012), [2012] N.J. No. 303, 2012 NLCA 61, 2012 CarswellNfld 400,97 C.R. (6th) 16, 1015 A.P.R. 178, 327 Nfld. & P.E.I.R. 178, 266 C.R.R.(2d) 29 (N.L. C.A.) — referred to

R. v. Henry (2005), 2005 SCC 76, 2005 CarswellBC 2972, 2005 CarswellBC2973, 33 C.R. (6th) 215, 202 C.C.C. (3d) 449, 260 D.L.R. (4th) 411, 49B.C.L.R. (4th) 1, 219 B.C.A.C. 1, 361 W.A.C. 1, 376 A.R. 1, 360 W.A.C. 1,136 C.R.R. (2d) 121, [2006] 4 W.W.R. 605, (sub nom. R. c. Henry) [2005] 3S.C.R. 609, 342 N.R. 259, [2005] S.C.J. No. 76 (S.C.C.) — referred to

R. v. Hutchings (2012), 2012 NLCA 2, 2012 CarswellNfld 17, [2012] N.J. No.12, 982 A.P.R. 211, 316 Nfld. & P.E.I.R. 211, 282 C.C.C. (3d) 104 (N.L.C.A.) — considered

Russell v. S.W. Mifflin Ltd. (1991), 89 Nfld. & P.E.I.R. 168, (sub nom. Russell v.Mifflin (S.W.) Ltd.) 278 A.P.R. 168, 1991 CarswellNfld 226 (Nfld. T.D.) —referred to

Stephenson v. Hilti (Canada) Ltd. (1989), 29 C.C.E.L. 80, 63 D.L.R. (4th) 573,93 N.S.R. (2d) 366, 242 A.P.R. 366, 1989 CarswellNS 115, [1989] N.S.J.No. 346 (N.S. T.D.) — referred to

Syncrude Canada Ltd. v. Hunter Engineering Co. (1989), [1989] 3 W.W.R. 385,(sub nom. Hunter Engineering Co. v. Syncrude Can. Ltd.) [1989] 1 S.C.R.426, (sub nom. Hunter Engineering Co. v. Syncrude Can. Ltd.) 57 D.L.R.(4th) 321, (sub nom. Hunter Engineering Co. v. Syncrude Can. Ltd.) 92 N.R.1, (sub nom. Hunter Engineering Co. v. Syncrude Can. Ltd.) 35 B.C.L.R.(2d) 145, 1989 CarswellBC 37, 1989 CarswellBC 703, [1989] S.C.J. No. 23,EYB 1989-66979 (S.C.C.) — considered

Downer v. Pitcher Per curiam 223

Titus v. William F. Cooke Enterprises Inc. (2007), 2007 ONCA 573, 2007 Cars-wellOnt 5229, 2007 C.L.L.C. 210-036, 284 D.L.R. (4th) 734, 228 O.A.C.232, 61 C.C.E.L. (3d) 202, [2007] O.J. No. 3148 (Ont. C.A.) — referred to

Torrance v. Bolton (1872), L.R. 8 App. Cas. 118 (Eng. Ch. App.) — considered


Insurance Companies Act, R.S.N. 1990, c. I-10s. 96.2 [en. 2004 c. 27 s. 16] — referred to

Regulations considered:

Insurance Companies Act, R.S.N.L. 1990, c. I-10Automobile Insurance Prohibited Underwriting Regulations, Nfld. Reg.80/04

s. 4(1)(b) — considered

APPEAL by defendant from judgment reported at Pitcher v. Downer (2013),2013 NLTD(G) 82, 2013 CarswellNfld 216, 45 M.V.R. (6th) 92, 362 D.L.R.(4th) 471, 1049 A.P.R. 39, 338 Nfld. & P.E.I.R. 39, [2013] N.J. No. 189 (N.L.T.D.), declaring release signed by plaintiff unconscionable.

Edward Vanderkloet, for AppellantToby Bristow, for Respondent

Per curiam:

1 This appeal addresses whether a trial judge erred in setting aside arelease, made as part of settling a motor vehicle damage claim, on thegrounds of unconscionability. The specific issues to be addressed on ap-peal are:

(1) Whether the trial judge erred in her formulation of the test for ap-plying the doctrine of unconscionability;

(2) Whether the trial judge erred in applying the proper legal test tothe evidence and in concluding that (a) there was an inequality ofbargaining power between the parties; (b) the inequality was im-properly exploited by the appellant; and (c) the settlement was un-fair in the sense of being unconscionable.

Context2 The release arose out of discussions between Mr. Downer, the appel-

lant, and Ms. Pitcher, the respondent, following a vehicle collision inwhich Mr. Downer’s car rear-ended Ms. Pitcher’s taxicab. There was noissue as to liability. Mr. Downer agreed to pay for the cost of repairs of


Ms. Pitcher’s vehicle and to pay $300 as compensation for income lostwhile Ms. Pitcher’s taxicab was out of service being repaired. In return,Ms. Pitcher signed, without legal advice, a document headed “Full andFinal Release” which was subsequently presented to her by Mr. Downer.The document had been prepared based on a precedent given him by alawyer who was an acquaintance.

3 The document purported to release Mr. Downer “without qualifica-tion or limitation” from all claims and causes of action including “notonly all known injuries, losses and damages, but also injuries, losses anddamages not now known or anticipated but which may later develop orbe discovered.” The document also described itself as a “full and finalcompromise of all claims and proceedings ... now or hereafter brought,for damages, loss or injury” in relation to the collision. It is conceded forthe purposes of this appeal that the words chosen cover claims for physi-cal injuries arising in the future.

4 Although Ms. Pitcher said she felt fine at the time of signing the re-lease, she developed symptoms of soft tissue injury approximately sevenmonths later and made a claim against Mr. Downer, claiming that therewas no “meeting of the minds” and hence no concluded agreement onessential terms (relinquishment of claims for personal injury) becausewhen she signed the release she did not read it in its entirety and shethought that it related to property damage and income loss only. The trialjudge found that there was a concluded agreement that purported tocover personal injury claims. Her conclusions in that regard are not chal-lenged on this appeal.

5 The trial judge did, however, conclude that the release was uncon-scionable according to equitable principles and declared that it was unen-forceable so that Mr. Downer could not rely upon it to preclude Ms.Pitcher from advancing her personal injury claim. Mr. Downer chal-lenges that result.

Unconscionability: Principles

(a) The Futility of Using Linguistic Formulae for DeterminingUnconscionability Issues

6 Mr. Downer submits that the trial judge formulated and applied thewrong test for determining whether an agreement can be set aside ongrounds of unconscionability. It is therefore necessary to examine thescope of the jurisdiction of the Court in this regard.


7 The trial judge purported to apply the “test for unconscionability” setout in Howell v. Reitmans (Canada) Ltd. (2002), 215 Nfld. & P.E.I.R.240 (Nfld. T.D.), which stated as follows:

[21] ... Exceptionally, a court will set aside a release or refuse to en-force it if the circumstances demonstrate that the bargain arrived atwas unconscionable...

[22] To establish unconscionability, three things should generally beshown:

1. There was an inequality of bargaining position arising out ofignorance, need or distress of the weaker party;

2. The stronger party unconscientiously used a position ofpower to achieve an advantage; and

3. The agreement reached was substantially unfair to the weakerparty or substantially divergent from community standards ofcommercial morality that it should be set aside.

(Underlining added.)

8 Mr. Downer had submitted that the test was more properly describedin the Alberta Court of Appeal decision in Cain v. Clarica Life InsuranceCo., 2005 ABCA 437 (Alta. C.A.) which, after referring to a number ofcases, approached the matter using these words:

[32] Those authorities discuss four elements which appear to be nec-essary for unconscionability. (Some cases state some of the four asexceptions to be disproved by the alleged oppressor, but nothingturns on onus in this case.) The four necessary elements are:

1. a grossly unfair and improvident transaction;

2. victim’s lack of independent legal advice or other suitableadvice;

3. overwhelming imbalance in bargaining power caused by vic-tim’s ignorance of business, illiteracy, ignorance of the lan-guage of the bargain, blindness, deafness, illness, senility, orsimilar disability; and

4. other party’s knowingly taking advantage of thisvulnerability.


9 The trial judge rejected this alternative formulation and purported toapply the Howell formulation, characterizing the Howell test as “aslightly lower threshold” (paragraph 64). In differentiating between thetwo formulations, she focused on the “more extreme language” used in


Cain by referring to and comparing the adjectives and adverbs under-lined in the quotations above.

10 At this point, it is also worth noting that, in addition to using “moreextreme” descriptors in the formulation of the test, Cain also requires, as“necessary” elements that must be present, that (i) the victim have a lackof independent legal or other suitable advice; and (ii) the other partymust “knowingly” take advantage of the victim’s vulnerability, i.e. he orshe must have actual knowledge of the victim’s disability. In contrast,lack of legal advice is not mentioned as an element of the test in Howell,nor is actual knowledge of the victim’s vulnerability required, only thatthere be a use of or reliance on a power imbalance that is characterized inall the circumstances as “unconscientious.”

11 In Cain, Cote J.A. observed that the tests for determining unconscio-nability “are not always stated the same way” (paragraph 31). In sayingthis, he was recognizing that this area of the law has seen, in its develop-ment, a considerable degree of fluidity in the way the underlying concepthas been formulated and applied in concrete situations. As noted bySopinka J. in obiter in Norberg v. Wynrib, [1992] 2 S.C.R. 226 (S.C.C.)at 309, “the doctrine of unconscionability and the related principle of ine-quality of bargaining power are evolving and, as yet, not completely set-tled areas of the law of contract.” This is no doubt due in part to thetension that necessarily exists at the intersection of the operation of thedoctrine with traditional notions of freedom and sanctity of contract, asexemplified in such notions as caveat emptor and the refusal of the courtto inquire into the adequacy of consideration. The scope of the doctrineis also affected by having to make conceptual distinctions from other re-lated equitable remedies based on claims of duress, undue influence, mis-take and misrepresentation, among others.

12 One ought to use caution in placing too much emphasis on parsingthe specific language used in reasons for judgment as if the words wereenacted in a statute: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609(S.C.C.) at paragraph 57; R. v. Hutchings, 2012 NLCA 2, 316 Nfld. &P.E.I.R. 211 (N.L. C.A.) at paragraphs 60-61; R. v. Hart, [2012] N.J. No.303, 327 Nfld. & P.E.I.R. 178 (N.L. C.A.) at paragraphs 195-197.Parsing the words in a statute is unlike the process of interpreting andgiving life to general common law, let alone equitable, principles statedby a judge in the course of his or her reasons in a judgment. As Goodhartreminds us, “the first rule for discovering the ratio decidendi of a case isthat it must not be sought in the reasons on which the judge based his


decision” (Arthur L. Goodhart, “Determining the Ratio Decidendi of aCase” (1930), 40 Yale L.J. 161 at 164); rather, it is to be sought in areconstructed principle that best explains the result by reference to thefacts of the case that are deemed material by the judge. Again in Good-hart’s words:

... it is not the rule of law “set forth” by the court, or the rule “enunci-ated” as Halsbury puts it, which necessarily constitutes the principleof the case. There may be no rule of law set forth in the opinion, orthe rule when stated may be too wide or too narrow ... Neverthelesseach of these cases contains a principle which can be discovered onproper analysis.

13 Eschewing attention to rigid linguistic formulae is especially impor-tant when dealing with equitable concepts and principles, as opposed tocommon law rules. Equity fashions its principles and remedies by refer-ence to the conscience of the parties as displayed in the particular cir-cumstances of the case. Those circumstances are infinitely variable andoften do not admit of a rule-based result relying on a formulaic “test.” Itis the underlying rationale for the doctrine that must always be kept inmind when seeking to invoke the equitable jurisdiction of the court.

14 Debating, in a particular case, whether there was an “overwhelmingimbalance” or merely an “inequality” of bargaining power or whether thetransaction was “grossly” or merely “substantially” unfair — to focus onsome of the differences in language in Cain and Howell — is a sterileand artificial exercise. Such adjectives have differing penumbras ofmeaning depending on who is employing them. In Harry v. Kreutziger(1978), 95 D.L.R. (3d) 231 (B.C. C.A.) Lambert J.A. warned that focus-ing on such language differences may deflect from considering and ap-plying correctly the principle underlying the court’s jurisdiction. He ar-gued for the formulation of a broad principle rather than focusing onquestions such as:

[29] ... a consideration of whether the consideration was grossly in-adequate, rather than merely inadequate, separate from the considera-tion of whether bargaining power was grievously impaired, or merelybadly impaired. Such separate consideration of separate questionsproduced by the application of a synthetic rule tends to obscurerather than aid in the process of decision.

15 Lambert J.A. advocated that “the single question is whether the trans-action, seen as a whole, is sufficiently divergent from community stan-dards of commercial morality that it should be rescinded.” While I do notagree that this is the appropriate or sufficient formulation of the scope of


the jurisdiction, I do agree that the scope cannot be defined by focusingon the specific words used in individual judgments to explain how thejudge reached the conclusion he or she did in one particular case.

16 Indeed, the descriptors used in setting out the applicable principlesare not uniform in other case law or in academic discussion. SeeMorrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710 (B.C. C.A.),per Davey J.A. at p. 713 and Sheppard J.A. at p. 721; Harry v. Kreutzier,per McIntyre J.A. at paragraph 15; Stephenson v. Hilti (Canada) Ltd.(1989), 93 N.S.R. (2d) 366 (N.S. T.D.) per Hallett J. at p. 87; Floyd v.Couture, 2004 ABQB 238, [2005] 3 W.W.R. 287 (Alta. Q.B.), per CoutuJ. at paragraphs 139-152; Titus v. William F. Cooke Enterprises Inc.,2007 ONCA 573 (Ont. C.A.), per MacPherson J.A. at paragraph 38;Bradley Crawford, “Restitution — Unconscionable Transaction — Un-due Advantage Taken of Inequality Between Parties” (1966) 44 Can. B.Rev. 142 at p. 143; S.M. Waddams, “Unconscionability in Contracts”(1976) 39 Can B. Rev. 369 at p.392.

17 Although the Supreme Court of Canada has not dealt with the issuefrom a comprehensive doctrinal point of view, it has had occasion to re-fer to the nature of the unconscionability jurisdiction tangential to deal-ing with other issues. When doing so, the descriptive language employedis equally non-uniform. See Norberg v. Wynrib per LaForest J. (“over-whelming imbalance in the power relationship” (para 30); “an inequalityof bargaining power” (33; 41); “grossly inadequate” consideration (31,quoting Denning M.R. in Lloyd’s Bank v. Bundy (1974), [1975] Q.B. 326(Eng. C.A.) at p. 339); “improvident” bargain (41)); Hodgkinson v.Simms, [1994] 3 S.C.R. 377 (S.C.C.), per LaForest J. (“abuse of a pre-existing inequality of bargaining power” (para 27); Dyck v. ManitobaSnowmobile Assn. Inc., [1985] 1 S.C.R. 589 (S.C.C.), per Curiam (“dif-ferences between the bargaining strength of the parties ... where thestronger party has taken unfair advantage of the other” (p. 592);Syncrude Canada Ltd. v. Hunter Engineering Co., [1989] 1 S.C.R. 426(S.C.C.), per Wilson J. (“inequality of bargaining power ... to permit thestrong to take advantage of the weak in the making of the contract” (p.516).

18 At most, the adjectives chosen — all of which emphasize that some-thing out of the ordinary should be present — should be regarded simplyas shorthand ways of emphasizing that something substantially morethan bargaining imbalance simpliciter and a precise measuring of the be-nefits of the transaction in a meticulous search for any slight difference


in relative advantage and disadvantage, is required. Without this empha-sis, the fundamental underpinnings of the traditional notions of freedomof contract, based on the idea that one can bargain in a self-interestedway so long as bargaining process standards (no fraud, duress, undueinfluence, misrepresentation, etc.) are observed, would be significantlyundermined. As noted by Cromwell J. in obiter in Bhasin v. Hrynew,2014 SCC 71, [2014] 3 S.C.R. 494 (S.C.C.) at paragraph 74, the doctrineof unconscionability by its nature “impose[s] limits on the freedom ofcontract.” Generally speaking, however, restrictions on freedom of con-tract are process-related and do not extend into regulating the substanceof a transaction that is a result of a process that is not tainted by fairprocess concerns.

19 The evaluation of the merits of the transaction is generally for theparties, not the courts, to determine. The point was put this way by LeBelJ., dissenting (but not on this point) in obiter in Miglin v. Miglin, 2003SCC 24, [2003] 1 S.C.R. 303 (S.C.C.):

[208] ... The stringency of the test for unconscionability reflects thestrong presumption that individuals act rationally, autonomously andin their own best interests when they form private agreements. Non-enforcement of the parties’ bargain is only justified when the transac-tion is so distorted by unequal bargaining power that this presump-tion is displaced.

20 A level of unequal bargaining power that distorts a transaction to thepoint that the presumption of rational autonomy in self-interested con-tract-making is displaced is a better way of describing the point at whichequity should intervene than by simply using a single adjective that ismalleable in its meaning. It ties the examination to a consideration of theunderlying purpose of equitable intervention and its place among the fun-damental concepts that support contractual enforceability. That said, anyattempt to define a bright line that clearly identifies on which side of theline a particular case falls will likely fail. That is why a return to firstprinciples every time will likely yield a more satisfying result in eachcase.

(b) Scope of the Jurisdiction to relieve Against UnconscionableBargains

21 Notions of unconscionability as a means of relieving a party from hisor her bargain have existed in the law for a long time, but they originallygrew up in discrete categories directed at specific (and narrow) catego-ries of power imbalance. The equitable principles that allowed for relief


against “catching bargains” with heirs and reversioners are early exam-ples. See the discussion by G.W. Keaton in An Introduction to Equity,6th ed. (London: Sir Isaac Pitman & Sons Ltd., 1965), Chapter 12, whichcollects early examples of cases dealing with inequitable and “unconsci-entious” bargains under the general heading of “Fraud in Equity”. CitingJames L.J. in Torrance v. Bolton (1872), L.R. 8 App. Cas. 118 (Eng. Ch.App.), Keaton asserts that “‘fraud’ came to include a wide range of trans-actions ‘in which the court is of opinion that it is unconscientious for aperson to avail himself of the legal advantage which he has obtained.’”Although “unconscientious” has a number of diverse meanings, in thecurrent context it refers to situations where a person seeks to take advan-tage of a legal position and equity, in response, fastens upon the con-science of the individual and provides a remedy to prevent him or herfrom unfairly taking advantage of that position.

22 The decision of Kay J. in Fry v. Lane (1888), 40 Ch. D. 312 (Eng.Ch. Div.), which dealt with a case of poor and ignorant persons entitledto a reversionary interest who were induced to sell at an undervalue with-out independent advice, attempted to express the applicable principles interms of the ignorance and vulnerability of the vendors, regardless oftheir reversionary status, thus providing a more general and broader prin-ciple for the exercise of the equitable jurisdiction.

23 The key to the granting of relief in most of the early cases was thevulnerability stemming from some mental or physical frailty or need ofthe party seeking relief which was capable of being — and was — takenadvantage of by the other, stronger, party. As LaForest J. noted in obiterin Norberg, the doctrine of unconscionability (among other doctrines)has “arisen to protect the vulnerable when they are in a relationship ofunequal power” (paragraph 28).

24 There is a discernible reluctance in the case law towards allowing ageneralized doctrine of unconscionability based on simple notions of un-fairness to supercede or undermine common law doctrines of freedom ofcontract. Thus it is often reiterated that there is no general power in thecourts to protect people from improvident or foolish bargains. To assertotherwise would be to interfere with self-interested bargaining. Thestruggle has been to find an appropriate principled balance between con-tinuing to recognize freedom of contract while ensuring that the mechan-istic application of that doctrine does not become an instrument of abusein ways that would generally be regarded as unfair.


25 The modern era of the articulation of the principles that will allowdisregarding the strict notion of freedom of contract in order to providerelief on grounds of unconscionability stems from the British ColumbiaCourt of Appeal decision in Morrison v. Coast Finance Ltd. Davey J.A.articulated the principle as follows at p. 713:

... a plea that a bargain is unconscionable invokes relief against anunfair advantage gained by an unconscientious use of power by astronger party against a weaker. On such a claim the material ingredi-ents are proof of inequality in the position of the parties arising out ofthe ignorance, need or distress of the weaker, which left him in thepower of the stronger, and proof of substantial unfairness of the bar-gain obtained by the stronger. On proof of those circumstances, itcreates a presumption of fraud which the stronger must repel byproving that the bargain was fair, just and reasonable. ...; or perhapsby showing that no advantage was taken.

26 Davey J.A.’s description in Morrison has been cited and relied on innumerous subsequent cases. See e.g. Norberg, per LaForest J. at para-graph 30 and Sopinka J. at paragraph 138; Lono v. Lono (1984), 52 Nfld.& P.E.I.R. 208 (Nfld. U.F.C.), per Cameron J. at p. 213; EagleConstruction Ltd. v. Chaytor (1986), 58 Nfld. & P.E.I.R. 23 (Nfld. T.D.)per Noel J. at p. 29; Campbell v. Campbell (1990), 83 Nfld. & P.E.I.R.340 (Nfld. U.F.C.), per L.D. Barry J. at p. 349; Russell v. S.W. MifflinLtd. (1991), 89 Nfld. & P.E.I.R. 168 (Nfld. T.D.), per L.D. Barry J. atparagraph 24. Other cases, while not citing Morrison, express a similarapproach. See Mushrow v. Mushrow (1986), 60 Nfld. & P.E.I.R. 305(Nfld. C.A.), per Gushue J.A. at p. 306.

27 All of the foregoing cases assert a two-part test: (i) proof of inequalityin the bargaining position of the parties; and (ii) proof of an improvidentbargain.

28 Bradley Crawford, in a well-known case comment in the CanadianBar Review in the year following Morrison v. Coast Finance Ltd.((1965), 44 Can. B. Rev. 142) purported to summarize the law to thatpoint by stressing the same two “ingredients” mentioned by Davey J.A.(inequality in the position of the parties arising out of ignorance, need ordistress and substantial unfairness of the resulting bargain). He stated itthis way at p. 143:

... the courts intervene to rescind the contract whenever it appearsthat one of the parties was incapable of adequately protecting his in-terests and the other has made some immoderate gain at his expense.If the bargain is fair the fact that the parties were not equally vigilant


of their interest is immaterial. Likewise if one was not preyed uponby the other, an improvident or even grossly inadequate considera-tion is no ground upon which to set aside a contract freely enteredinto. It is the combination of the inequality and improvidence whichalone may invoke this jurisdiction.

(Emphasis added.)

29 Crawford nevertheless bemoaned the fact that the amorphous natureof the jurisdiction rendered its application uncertain in practice, notingthat one’s perception of what amounts to taking undue advantage andwhat amounts to inequality often depends on the eye of the beholder. Hetherefore argued, at the very least, against loosening the jurisdiction andurged that both elements must be present “in compelling degree” (p.147). Indeed, the twin factors of inequality and resulting unfair bargainhave often been reiterated in subsequent cases as being the two funda-mental requirements for the exercise of the unconscionabilityjurisdiction.

30 Attempts have been made subsequently to reformulate the principlesand widen the circumstances where relief could be given. One of themost well-known is Lord Denning’s attempt in Lloyd’s Bank v. Bundy tocollapse notions of unconscionability, as described inn Morrison, as wellas other concepts such as fraud, duress, undue influence and undue pres-sure into one general notion of inequality of bargaining power. His at-tempted reformulation has been criticized and not been widely accepted.See e.g. National Westminster Bank plc v. Morgan, [1985] A.C. 686(U.K. H.L.), Swan, Canadian Contract Law, 1st ed. (Markham, ON:LexisNexis, 2006), pp. 673-675.

31 A narrower attempt to reformulate the unconscionability jurisdictionhas also been advocated. This approach questions the need, in every case,to establish that the bargain resulting from inequality of position is im-provident or unfair. Professor S.M. Waddams, The Law of Contracts(Toronto: Canada Law Book Inc., 2010), p. 399 expresses it this way:

... not every case lends itself to analysis in terms of equality of ex-change and sometimes it may be that there is a case for relief evenwhen the values exchanged are approximately equal. ... One in-tending to leave a farm to her son is persuaded to sell it to a stranger.Even though the sale is for full value there is, surely, a case for reliefif the stranger uses unfair methods to induce agreement. A youngman is persuaded to purchase twenty years of dancing lessons. If theperson was influenced to agree to the transaction by abuse by thedancing instructor of an emotional relationship it should, surely, be


no answer to a claim for relief that the lessons were worth the agreedprice.

32 Mitchell McInnes, The Canadian Law of Unjust Enrichment and Res-titution (Markham, ON: LexisNexis, 2014) also makes the same pointbut in a slightly different way. He argues that the organizing principlejustifying the application of the unconscionability doctrine should onlybe based on procedural unfairness rather than substantive unfairness.That means that the second prong of the Morrison formulation (improvi-dence in the result — an element of substantive unfairness) would notnecessarily be a requirement. He puts it this way at p. 552:

A purely procedural model of unconscionability also better accordswith the fundamental principles underlying unjust enrichment. In for-mulating laws to govern private transactions, a liberal society mustfocus on procedures, rather than results. The aim is not to secureequality of holdings or even equivalence of exchange. Rather, it is toestablish a system within ... which each person, as an autonomousagent, is entitled to pursue individualized goals. Freedom of choice,of course, entails the right to choose well and to choose poorly. Interms of material outcomes, success and failure are inevitable inci-dents of liberalism and therefore provide no basis for state interven-tion. The only transactions that ought to be upset arguably are thosethat ... violate the rules implemented to ensure procedural fairness.

If procedural fairness, in itself, does constitute a sufficient ground forrelief, an additional requirement of substantive unfairness may beworse than superfluous — if may engender injustice. Despite findingthat the defendant unfairly took advantage of the claimant’s weak-ness, a court would be compelled to uphold a transfer if the im-pugned exchange was supported by sufficient consideration. The re-sult would often be repugnant. It arguably is inappropriate, forinstance, to deny relief to the befuddled pensioner who was dupedinto selling her home at market value.

33 McInnes makes the same point as Waddams: an absolute require-ment, as a condition of relief, that the claimant for relief must show asubstantial unfairness of the bargain obtained by the stronger (per DaveyJ.A. in Morrison) may work an injustice in some cases. It does not ade-quately take account of the exceptional case where the “advantage”gained from the unequal relationship may not be a resulting unequal bar-gain but may include the conferring of intangible benefits (such as ob-taining a unique heirloom which the vulnerable owner would not, but forthe unequal relationship, have wanted to sell, whether for a fair price ornot).


34 This point is now recognized in Australia where proof of substantialunfairness is no longer regarded as a condition of relief. See Bigwood,“Antipodean Reflections on the Canadian Unconscionability Doctrine”(2005), 84 Can B. Rev. 171 at pp. 178-192; Commercial Bank of Austra-lia Ltd. v. Amadio 151 C.L.R. 447. That is not to say, of course, thatsubstantial unfairness of the resulting transaction is no longer a relevantconsideration in the unconscionability analysis, just that it is not a neces-sary requirement in all cases. Existence of substantial unfairness of theresulting bargain will still be important, as McInnes notes at p. 550, “notas an element of unconscionability per se, but rather as evidence of aprocedurally flawed disposition.” It may support the inference that a po-sition of disadvantage existed and it may also show that an unfair usewas made of the position of disadvantage by the other party.

35 Jettisoning the requirement of a resulting improvident bargain as arequirement for the application of the unconscionability doctrine, and af-firming it, instead, as an important consideration in determining whethera position of inequality existed and whether it was unfairly taken advan-tage of will bring the doctrine into line with the early English caseswhich placed emphasis on vulnerability resulting from a disparity of bar-gaining positions and the taking advantage of that vulnerability. See forexample, Chesterfield v. Janssen (1751), 2 Ves. Sen. 125 (Eng. Ch.)where Lord Hardwicke stressed the need to “prevent taking surreptitiousadvantage of the weakness or necessity of another.”

36 In more modern times, the same emphasis appears in some cases inthe Supreme Court of Canada without reference to a resulting improvi-dent bargain. See Dyck, referring simply to holding a transaction uncon-scionable and unenforceable “where the stronger party has taken unfairadvantage of the other,” and Hunter Engineering per Dickson C.J. at p.462 describing unconscionability simply as “situations of unequal bar-gaining power between the parties” and per Wilson J. at p. 516, referringto “the source of unconscionability” being “traditionally” inequality ofbargaining power permitting “the strong to take advantage of the weak inthe making of the contract,” and Hodgskinson v. Simms per LaForest J.who wrote at paragraph 27 of unconscionability being “triggered” byabuse of a pre-existing inequality of bargaining power and at paragraph35 of the vulnerability of people in a “power-dependency” relationship.

37 Viewed in this light, the key question must be whether there was adegree of vulnerability that had the potential of materially affecting theability, through rational autonomous decision-making, to protect one’s


own interests. If so, a duty will be cast on the other party not to act or torefrain from acting in such a way that the resulting transaction is reachedin a manner that involves the victim being unfairly taken advantage of.As expressed by Coutu J. in Floyd v. Couture et al at paragraph 146,“what is meant by inequality in power is where one party is at a seriousdisadvantage, so serious that they can be taken advantage of orexploited.”

38 Obviously, for the resulting transaction to be rendered impeachable, itmust be shown that it resulted from the disadvantage that existed. Onlythen can it be said that the claimant has been taken advantage of.

(c) The Nature of the Required Inequality of Bargaining Power39 It is not any inequality of position that will do. As Coutu J. observed

in Floyd v. Couture, every contract involves some disparity between theparties in terms of bargaining power. It must be such that it has the po-tential for seriously affecting the ability of the relief-seeker to make adecision as to his or her own best interests and thereby allows the otherparty an opportunity to take advantage of the claimant’s personal or situ-ational circumstances. That is why terms such as “overwhelming” or“substantial” or “special” have been used. While trying not to fall backinto the linguistic trap I have eschewed previously, I would venture tosay that what is meant by such terminology is that the inequality mustrelate to a special and significant disadvantage that has the potential ofovercoming the ability of the claimant to engage in autonomous self-in-terested bargaining.

40 Furthermore, there has to be something more than mere inequality ofinformation between the parties as to their respective legal positions.Rarely will the knowledge platform or appreciation base be the same oneach side. As Swan observes in Canadian Contract Law (Markham, On-tario: Lexis Nexis Butterworths, 2006) at 675:

The other important aspect of inequality is the unequal possession ofor access to information on the terms of the transaction, its conse-quences and the alternatives. It is almost inevitable that there will bethis kind of inequality in any contract between a merchant and a con-sumer or even between a large corporation and a very much smallerone or a business person on his or her own. The important questionwill be whether this kind of inequality is a proper basis for relief.From one point of view, it is essential that such an imbalance byitself not be a basis for relief, for otherwise most consumer and manycommercial contracts would be little better than voidable.



41 The type of inequality, whether lack of knowledge or otherwise, mustbe significant in the sense that it allows for the potential of someone be-ing unfairly taken advantage of. The early cases talked in terms of physi-cal and mental disability or economic need. But the relief cannot be lim-ited to that; there cannot be a closed list of categories. It will be a fact tobe proven in each case. In Norberg LaForest J. in obiter commented:

[33] An inequality of bargaining power may arise in a number ofways. As Boyle and Percy, Contracts: Cases & Commentaries, 4thed., (Toronto: Carswell, 1989), note at pp. 637-38:

[A person] may be intellectually weaker by reason of dis-ease of the mind, economically weaker or simply situa-tionally weaker because of temporary circumstances. Al-ternatively, the “weakness” may arise out of a specialrelationship in which trust and confidence has been re-posed in the other party. The comparative weakness orspecial relationship is, in every case, a fact to be proven.

As the last sentence of this passage suggests, the circumstances of eachcase must be examined to determine if there is an imbalance of power inthe relationship between the parties.

42 It follows that the inequality need not be found in some disabling cir-cumstance affecting the physical or mental abilities of the claimant. Theinequality can result from situational circumstances such as severe finan-cial need or other external pressures or special relationships that requirethe claimant to place trust in or reliance on the other contracting party.

43 But whatever the nature of the circumstance creating the conditionsof inequality, they must be significant in the sense that they have thepotential of resulting in the claimant being unfairly taken advantage ofand they must in fact lead to that advantage being taken.

(d) Taking Advantage: Knowledge of the Claimant’s DisadvantageousSituation

44 The next question is whether the resulting transaction must comeabout as a result of the stronger party’s intending or at least knowing thatthe power imbalance is bringing about this result. The case law is repletewith phrases such as the “unconscionable” or “unconscientious” (in thesense of lacking conscience) use of power or “exploitation” or “abuse” ofthe vulnerable position of the claimant. These phrases imply that thestronger party must knowingly act. In fact, in many cases, it is expressly


stated that the defendant must “knowingly” take advantage of the other’svulnerability. See, for example, Earl of Chesterfield v. Janssen whereLord Hardwicke wrote of taking surreptitious advantage of the weaknessor necessity of another “which knowingly to do is equally against con-science as to take advantage of his ignorance [p. 155; emphasis added].Similarly, Cain, quoted earlier, expressly refers to knowingly taking ad-vantage. Indeed, this idea is consistent with the notion of equity fasteningon the conscience of an individual and providing a remedy to preventhim or her from seeking to take unfair advantage of a legal position inunconscientious circumstances. But what type of knowledge is required?Is it limited to actual knowledge or can some form of constructiveknowledge suffice? As McInnes points out, the point is unsettled in Can-ada (p. 546).

45 The notion of exploiting an unequal relationship or victimizing orpreying upon or even simply taking advantage of the other party wouldsuggest that there must be some culpability or fault on the party fromwhom relief is being sought. Yet from the point of view of the relief-seeker, the victimization resulting from the events that occur is the samewhether or not the other party was a knowing participant. He or she willstill be a “victim” of the situation. Indeed, so long as the other party hasnot acted to his prejudice in reliance on the transaction or cannot rely onsome other restitutionary defence such as change of position or estoppel,why should a requirement of knowledge make any difference?

46 Limiting the relief to circumstances where there is actual knowledgefavours transactional security and enhances freedom of contract whereasextending relief to circumstances involving a broader conception ofknowledge will promote the notion of protecting the weak, naıve or inno-cent as the primary consideration. The equitable jurisdiction is focusedon protection of the vulnerable from an “unconscientious” use of a powerimbalance. While by its nature the jurisdiction has to be based on somedegree of fault or responsibility on the part of the person from whomrelief is being sought, I see no reason why equity’s fastening on the “con-science” of the defendant to justify relief cannot include other forms offault as well as actual knowledge of the disadvantage that is available tobe taken.

47 Actual knowledge in equity of course includes willful blindness orwillfully or recklessly failing to make relevant and reasonable inquiries,but in my view constructive knowledge such as knowledge of circum-stances as would indicate special and significant disadvantage flowing


from relationship inequality could also be covered. In other words, if theperson from whom relief is being sought knew or ought to have knownof the disadvantage and the opportunity to be had if the disadvantagewere exploited, and jumped at the chance, that should be enough.

48 I recognize that this conclusion is inconsistent with the recent deci-sion of the High Court of Australia in Kakavas v. Crown Melbourne Ltd.298 A.L.R. 35 which held, in the context of construing a statutory provi-sion relating to unconscionable transactions relief, that actual knowledgeof the victim’s disadvantage was required in order to constitute exploi-tive conduct in the sense of preying upon the victim, but that decision hasbeen criticized on this point. See Bigwood, “Still Curbing Unconsciona-bility: Kakavas in the High Court of Australia” (2013), 37 MelbourneUniversity Law Review 465. I am not persuaded to follow Kakavas.

49 I am satisfied that it would be open to a court in an appropriate caseto conclude that unconscionable behavior exists on the part of the personfrom whom relief is being sought where that person (i) actually knew of,(ii) was willfully blind to, (iii) willfully or recklessly failed to make rea-sonable inquiries concerning, or (iv) had knowledge of circumstancesthat pointed to, special and significant disadvantage created or flowingfrom an inequality of bargaining relationship that presents an opportunityfor that person being taken advantage of.

(e) Role of Legal Advice50 In Cain, Justice Cote stated that “lack of independent legal advice or

other suitable advice” was a requirement of entitlement to relief ongrounds of unconscionability. That would mean that being legally or oth-erwise suitably advised would automatically be fatal to a claim. I do notshare this view.

51 I recognize that even in the early cases, such as Fry v. Lane, the ab-sence of protective legal advice was regarded as an important factor inthe granting of relief. But that is not the same as saying that the presenceof advice automatically disentitles one to relief. Clearly, a person facingserious disadvantage that was capable of being taken advantage of andwho proceeds in the face of comprehensive and relevant legal advice thatpoints out the disadvantage and cautions not to proceed will face a verydifficult time in being able to justify a claim for relief. But that begs thequestion as to what the nature of the advice is and whether there might bealso other aspects of the inequality of bargaining power that might beinfluencing the relief-seeker to proceed anyway. What if the legal advice


was incompetent or was pro forma in nature and did not address the is-sues under consideration? The most one can say is that the presence ofadvice may, in a particular circumstance, level the playing field and mayremove any concerns about victimization, thereby providing a defence toan otherwise apparent claim.

52 I therefore prefer not to state the absence of legal or other suitableadvice as a requirement for relief; instead, the presence of relevant ad-vice may be strong evidence that the claimant was not taken advantage ofas a result of the inequality of bargaining power.

Re-statement of the Applicable Principles53 Although generally the courts should try to develop and apply the

common law and equity in a uniform manner throughout the country (ex-cept where local conditions may dictate otherwise), in this case there islittle consistency on this subject throughout the country and no definitiveguidance from the Supreme Court of Canada. Further, there is no defini-tive statement on the subject from previous decisions of this Court, ex-cept possibly Mushrow which contained three separate opinions whichwere not all expressed in the same way.

54 Under these circumstances, I believe the applicable principles couldbe stated as follows:

1. A person claiming relief on grounds of unconscionability may suc-ceed where:

(a) there is an inequality of bargaining power between the partiesresulting from or created by a special and significant disad-vantage by reason of some condition or circumstance thatprovides an opportunity for the other party to take advantageof the party suffering from the disadvantage; and

(b) the other party unfairly or unconscientiously (in the sense oflacking conscience) takes advantage of that opportunity.

2. Inequality of bargaining position that is relevant to a claim for re-lief on grounds of unconscionability may arise from the personalcharacteristics of the claimant or the situation in which he or shefinds him-or her-self. For example,

(a) personal inequality could include special and significant dis-advantage resulting from age, immaturity, senility, mentalweakness, ignorance resulting from lack of access to criticalinformation or physical disability;


(b) situational inequality could include special and significantdisadvantage resulting from severe financial need or otherpressure or dependence based on a trust or confidentialrelationship.

No matter what the nature of the disadvantage, however, it must in-volve more than what would be regarded as reasonably tolerable dif-ferences and risks of normal human activity and interaction that onewould expect from persons engaged in self-interested bargaining (i.e.the disadvantage must be “special”) and it must also have the poten-tial, if allowed to govern the relationship, of the claimant being un-fairly being taken advantage of (i.e. the disadvantage must be“significant”).

3. The advantage resulting from the inequality of bargaining powerneed not be a financial advantage; it could be of a more intangiblekind that results in a transaction that, but for the disadvantage, therelief-seeker or no reasonable person in the position of the relief-seeker would not likely have entered into.

4. The circumstances surrounding the taking of advantage of the re-lief-seeker must be such that they make the other party’s actions un-conscientious in the sense that in gaining the advantage the otherparty knew or ought, as a reasonable person in those circumstances,to have known of the relief-seeker’s vulnerability, therefore makingit prima facie unfair or unconscionable for the other party to obtainand retain the benefit from the disadvantaged party. Knowledgecould be either actual (personal, willful blindness or willful or reck-less failure to make relevant and reasonable inquiries) or constructive(knowledge of circumstances as would indicate, in the mind of a rea-sonable person, the relief-seeker’s vulnerability).

5. Where the conditions in (1) are present, the normal policies of pre-serving the freedom and sanctity of contract will be displaced in fa-vour of providing relief to the party claiming to have been taken ad-vantage of, unless the other party can demonstrate:

(a) the resulting transaction was not unfair in the sense that it wasnot improvident or otherwise did not in fact confer an undueadvantage, whether tangible or intangible, on the other party;

(b) the relief-seeker had the benefit of relevant legal or other ad-vice and, knowing of the disadvantage, voluntarily chose toproceed with the transaction anyway;

(c) the other party took steps to bring the unequal circumstancesto the attention of the relief-seeker or otherwise acted reason-ably to be protective of the relief-seeker’s vulnerableposition;


(d) recognized equitable defences apply.

6. While not a requirement for relief, evidence of the existence of aresulting improvident bargain, in the sense of some financial detri-ment to the relief-seeker, may be relevant to drawing an inferencethat a special and significant disadvantage existed or that an unfair orunconscionable use was made of the position of disadvantage of therelief-seeker by the other party.

Application to this Case55 While in conducting her analysis the trial judge was trying to tie her

findings and conclusions into the specific language of the Howell test —a linguistic test that is not determinative — her unchallenged factualfindings may still form the basis of an analysis in accordance with theproper approach to determining unconscionability claims.

56 The trial judge found as a fact that when she signed the release, Ms.Pitcher thought she was only signing away her right to claim for vehiclerepairs and her loss of income for the time during which her vehicle wasbeing repaired (Paragraph 66). She also found that Mr. Downer did notinform Ms. Pitcher that the release referenced her right to make a per-sonal injury claim (Judgment, paragraph 67). These findings have notbeen challenged on appeal. I would note, however, that Mr. Downer hadno duty, in ordinary circumstances of contractual bargaining, to informMs. Pitcher of her right to make a personal injury claim.

57 It also appears from the evidence that Mr. Downer made no overtrepresentation to Ms. Pitcher that the release did or did not cover per-sonal injury. In the words of the trial judge, he “turned a blind eye” to theissue. He did, however, say in his evidence that he relied on Ms.Pitcher’s assurance at the time that she felt okay and he did not think thatshe had been injured. It is difficult in these circumstances to say that he“turned a blind eye” to something he knew nothing about or, as a reason-able person ought to have known about. Although the judge concludedthat it was not reasonable for Mr. Downer to assume that there was nopotential personal injury claim, that is different from saying that he knewof the existence of one or that it would have been reasonable for him tohave inquired further.

58 Absent any representation by him that misled Ms. Pitcher to thinkthat the release did not cover personal injury and absent any knowledgeby Mr. Downer that Ms. Pitcher was mistaken as to the scope of therelease, Mr. Downer was not required, as a matter of conventional con-


tract law, to disabuse Ms. Pitcher of any mistaken belief or to educate heras to the effect of the release on her legal rights.

59 The trial judge nevertheless concluded that here was an “inequality ofbargaining power arising out of the ignorance, need or distress” of Ms.Pitcher (Judgment, paragraph 70). She reached this conclusion on the ba-ses that (i) she was a taxi driver and required her vehicle to earn a living,thus creating a “need” that Mr. Downer was aware of; and (ii) she had noexperience with signing a release for property damage, did not read therelease before signing and had no legal advice, thus creating an “igno-rance” of her legal position; and (iii) she “naively” placed trust in Mr.Downer “when she erroneously assumed that the release merely impededher ability to claim for property damage and lost income”.

60 The judge contrasted the relative positions of the parties in two ways.First, she contrasted Ms. Pitcher’s absence of any legal advice with thefact that Mr. Downer had had the benefit of some advice from his insur-ance company as to the importance of obtaining a full release and hadobtained a precedent for a release from a lawyer. Secondly, she describedMs. Pitcher as “meek and unsophisticated” and Mr. Downer as “quitesophisticated.”

61 The trial judge concluded on these facts that the ability of Ms. Pitcherto properly protect her interests was “improperly impaired” by an ine-quality of bargaining power. She also concluded that Mr. Downer “un-conscientiously used a position of power to achieve an advantage” overMs. Pitcher by turning a “blind eye” to the possibility that Ms. Pitchermight have suffered personal injury (even though she told him she wasokay) and by proceeding to obtain the release (even though he had sug-gested she read the release but she did not do so in its entirety when shesigned).

62 The judge also concluded that the agreement reached was “substan-tially unfair” to Ms. Pitcher because she relinquished her right to claimfor personal injury damages essentially for no consideration.

63 The first and most important question to be faced is whether therewas a degree of vulnerability on the part of Ms. Pitcher such that byvirtue of the relationship and interactions of the parties there was such asubstantial inequality of bargaining power between them, flowing from aspecial and significant disadvantage, that equity ought to step in and up-set the bargain reached.

64 The mere fact that a bargain turns out to be improvident or foolish forone party does not provide a basis for relieving that party from the prod-


uct of his or her foolishness. In this case, aside from being described bythe trial judge as “meek and unsophisticated” no personal special disad-vantage existed. There is no suggestion here that Ms. Pitcher, a self-em-ployed woman earning a living by driving a taxicab, was so unsophistica-ted that she was incapable of looking out for her own interests. She had ahigh school education with some computer training at College of theNorth Atlantic. She had also been injured in another previous motor ve-hicle accident, had retained a lawyer and signed a release as part of asettlement. There is no suggestion of immaturity, senescence, or mentalor physical impairment. As to the judge’s finding that she was acting outof ignorance of her legal position because she had no legal advice anddid not read the full release before signing, her failure to read the releasewas her own choice and was not brought about by any representation byMr. Downer as to what it contained or any pressure by him. There wasno evidence that Mr. Downer knew or ought to have known that Ms.Pitcher believed that the release did not cover personal injury damages.Furthermore, although she did not read the full release document, she didread the heading which read “Full and Final Release.” There is nothingin the evidence here to suggest that because of some special or signifi-cant disadvantage, she was unable to protect her own interests by readingthe release.

65 Mere inequality of information as to respective legal positions rela-tive to the terms of a transaction, its consequences or alternatives will notnormally be sufficient to establish a special disadvantage. This is becausethis type of inequality will exist in most contracting situations. That can-not in itself be enough to justify setting aside the transaction. As Profes-sor Swan noted, in the passage quoted earlier, “otherwise most consumerand many commercial contracts would be little better than voidable.”

66 As to the judge’s conclusion that an inequality existed because of“need”, resulting from Ms. Pitcher being deprived of income while hervehicle was being repaired, I am not satisfied that her potential loss ofincome for the short time the vehicle would be out of service was of sucha magnitude that she was placed at a significant disadvantage that com-pelled her to agree to disadvantageous terms. We know nothing of Ms.Pitcher’s other financial circumstances to place the projected loss of in-come into context. In other words, we do not know how desperate shewas. To conclude that the potential loss of two days’ income in itselfcreated a special disadvantage justifying relief on grounds of unconscio-nability would be to put virtually all settlements at risk.


67 There was no degree of vulnerability present that that could havebeen exploited by Mr. Downer. Furthermore, it cannot be said, in thecircumstances of this case on the facts as found by the trial judge, thatMr. Downer unfairly or unconscionably took advantage of any “inequal-ity” if that was what it was. While it is true that he clearly wanted toobtain a release from all future liability, he did not know that Ms. Pitcherbelieved the release only covered property damage and income loss. Hesuggested to Ms. Pitcher that she read the document before signing andhe did not represent to her that it was anything else than what the wordsclearly conveyed (which was that all claims, including personal injuryclaims, were being released). It cannot be said that he knew, in either theactual or constructive sense, of any vulnerability, in the sense of any spe-cial and significant disadvantage that Ms. Pitcher was suffering from.

68 In these circumstances the ordinary common law policies of promot-ing sanctity of contract and permitting self-interested bargaining are notdisplaced by any equity based on unconscionability. Ms. Pitcher’s argu-ments based on the alleged improvident result do not in the circum-stances justify a contrary conclusion or inference that there was in fact aninequality of bargaining power or that an improper use was made of anydisadvantage.

69 Ms. Pitcher argued that inasmuch as the payments pursuant to the set-tlement were only for property damage and income loss, there was noconsideration furnished for the release of the personal injury claim andthat therefore the result was improvident. While I agree that the calcula-tion of the amount of the settlement was based on the extent of the pro-perty damage and income loss, the amounts paid are expressed to be con-sideration for the release of all claims. Mr. Downer incurred a detrimentin return for the total release. As the promisee, he has furnished consider-ation. See Albert Pearl (Management) Ltd. v. J.D.F. Builders Ltd.(1974), [1975] 2 S.C.R. 846 (S.C.C.). It cannot be said therefore thatthere was no consideration furnished for the release of the personal in-jury claim.

70 Furthermore, I agree with counsel for Mr. Downer that the right ofinsured tortfeasors to make private agreements with tort claimants so asto avoid risk classification reassessments by their insurers — somethingthat is permitted in this jurisdiction (see Insurance Companies Act,RSNL 1990, c. I-10, s. 96.2; Automobile Insurance Prohibited Under-writing Regulations, NL Reg 80/04, s. 4(1)(b)) — would be effectively


negated if attempting to do so is in effect regarded as an unconscionableattempt to take advantage of a tort claimant.

Conclusion and Disposition71 I conclude, therefore that the trial judge erred in concluding that the

release was unenforceable on grounds of unconscionability.72 I would allow the appeal and declare that Mr. Downer may rely on

the release in defending against Ms. Pitcher’s personal injury claim.73 The trial judge also indicated in her judgment that if the parties were

unable to agree upon the next stage of the proceedings, they could seekdirections. Since it is not clear as to whether anything remains to be liti-gated in view of the conclusion in this Court, I would remit the matter tothe Trial Division for further action, if any is required.

74 I would award costs on a party-and-party basis on a column 3 basis toMr. Downer both in this Court and in the Court below.

Appeal allowed.


[Indexed as: R. v. Gopher]

HER MAJESTY THE QUEEN and RODNEY GOPHER

Saskatchewan Court of Queen’s Bench

Docket: Saskatoon CRM 178/16

2017 SKQB 50

R.S. Smith J.


Motor vehicles –––– Offences and penalties — Offences — Parking of-fences –––– Accused’s wife, N, parked vehicle in metered parking space in Sas-katoon — N put appropriate amount of money in parking kiosk, but she inadver-tently coded in wrong licence plate number — As result, parking ticket wasissued to accused, who was registered owner of vehicle — Legal framework forparking offences was set out in By-law 7200 of City of Saskatoon (“parking by-law”) — N defended parking ticket before Justice of Peace — Justice of Peaceacquitted accused on ground that inputting correct amount of money, even withincorrect licence plate number, met test of due diligence — City of Saskatoonappealed — Appeal allowed — Accused was ordered to pay parking ticketwithin 30 days — Parking tickets are strict liability offences — This meant thatoffence at bar was made out once prohibited act was proved, and that to avoidliability, accused had to establish due diligence — N’s actions in depositing ap-propriate amount of money and inputting wrong licence plate number did notconstitute due diligence — Earnest incompetence is not legal equivalent of duediligence — More to point, s. 55.2(2) of parking by-law specifically providedthat inserting wrong information was non-payment for parking stall.

Cases considered by R.S. Smith J.:

Levis (Ville) c. Tetreault (2006), 2006 SCC 12, 2006 CarswellQue 2911, 2006CarswellQue 2912, [2006] S.C.J. No. 12, 36 C.R. (6th) 215, 31 M.V.R. (5th)1, (sub nom. Levis (City) v. Tetreault) 346 N.R. 331, (sub nom. Levis (City)v. Tetreault) 266 D.L.R. (4th) 165, [2006] 1 S.C.R. 420, 207 C.C.C. (3d) 1(S.C.C.) — followed

Merchant v. Law Society (Saskatchewan) (2009), 2009 SKCA 33, 2009 Car-swellSask 154, [2009] 5 W.W.R. 478, 324 Sask. R. 108, 451 W.A.C. 108(Sask. C.A.) — referred to

R. v. Alexander (1999), 1999 CarswellNfld 19, 171 Nfld. & P.E.I.R. 74, 525A.P.R. 74, 28 C.E.L.R. (N.S.) 217, [1999] N.J. No. 19 (Nfld. C.A.) — re-ferred to

R. v. Gopher R.S. Smith J. 247

R. v. Chapin (1979), [1979] 2 S.C.R. 121, 95 D.L.R. (3d) 13, 26 N.R. 289, 8C.E.L.R. 151, 7 C.R. (3d) 225 (Eng.), 45 C.C.C. (2d) 333, 10 C.R. (3d) 371(Fr.), 1979 CarswellOnt 39, 1979 CarswellOnt 1316 (S.C.C.) — referred to

R. v. Deforest (2013), 2013 SKPC 30, 2013 CarswellSask 122, 41 M.V.R. (6th)338, 413 Sask. R. 293 (Sask. Prov. Ct.) — referred to

R. v. Helm (2011), 2011 SKQB 32, 2011 CarswellSask 36, [2011] S.J. No. 38, 8M.V.R. (6th) 59, [2011] 6 W.W.R. 641, 368 Sask. R. 115 (Sask. Q.B.) —followed

R. v. Kurtzman (1991), 31 M.V.R. (2d) 1, 4 O.R. (3d) 417, 66 C.C.C. (3d) 161,50 O.A.C. 20, 1991 CarswellOnt 23, [1991] O.J. No. 1285 (Ont. C.A.) —considered

R. v. Molis (1980), [1980] 2 S.C.R. 356, 55 C.C.C. (2d) 558, 116 D.L.R. (3d)291, 33 N.R. 411, 1980 CarswellOnt 659, 1980 CarswellOnt 659F, [1980]S.C.J. No. 75 (S.C.C.) — considered

R. v. Sault Ste. Marie (City) (1978), [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161,21 N.R. 295, 7 C.E.L.R. 53, 3 C.R. (3d) 30, 40 C.C.C. (2d) 353, 1978 Cars-wellOnt 24, 1978 CarswellOnt 594, [1978] S.C.J. No. 59 (S.C.C.) —followed

Reference re s. 94(2) of Motor Vehicle Act (British Columbia) (1985), [1985] 2S.C.R. 486, 24 D.L.R. (4th) 536, 63 N.R. 266, 69 B.C.L.R. 145, 23 C.C.C.(3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, [1986] 1 W.W.R. 481, 48 C.R. (3d)289, 1985 CarswellBC 398, [1986] D.L.Q. 90, 1985 CarswellBC 816,[1985] S.C.J. No. 73 (S.C.C.) — referred to

Saskatchewan (Attorney General) v. Cook (1983), 23 Sask. R. 236, 1983 Car-swellSask 578 (Sask. Q.B.) — referred to


Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

Generally — referred toCriminal Code, R.S.C. 1985, c. C-46

ss. 683-689 — referred to

APPEAL by City of Saskatoon from decision acquitting owner of vehicle ofparking offence.

Alan W. Rankine, for CrownRodney Gopher, for himself

R.S. Smith J.:

Introduction1 Parking regulations are one of the natural incidents to coherent muni-

cipal government. In their absence, chaos would soon be upon the peo-


ple. It follows that paying parking tickets are one of the necessary aggra-vations and obligations that fall upon citizens who wish to reside in anorganized body politic.

2 As a general rule, parking tickets are not litigated and even morerarely, do they find themselves in the Queen’s Bench Court on appealfrom the Provincial Court. This case is the proverbial exception to thatrule.

3 On November 19, 2015, Velma Night parked in downtown Saskatoonas she was attending a meeting. She put the appropriate amount ofmoney in the parking kiosk but inadvertently coded in the wrong licenceplate number. In due course she received a parking ticket. The ticket wasissued to Rodney Gopher, Ms. Night’s spouse, as he was the registeredowner of the vehicle.

4 As Ms. Night had paid in the appropriate amount of money into theparking kiosk, she decided to attend court to defend the parking ticket.Parking ticket cases are heard in Provincial Court (Traffic Division) andare presided over by a Justice of the Peace.

5 In Ms. Night’s case, the Justice of the Peace accepted her evidencethat she paid the appropriate amount of money into the parking kiosk.The Justice of the Peace concluded it was unfair that Ms. Night should beburdened by the parking ticket simply because she made an error withrespect to her vehicle’s licence plate number.

6 Although parking offences are a strict liability offence, it is a full andcomplete defence if it can be shown that the accused has demonstrateddue diligence.

7 The Justice of the Peace opined that inputting the correct amount ofmoney, even with an incorrect licence plate number, was sufficient tomeet the test of due diligence. As a result, Mr. Gopher was acquitted.

8 Defeat did not rest easily with the City of Saskatoon. It has appealed.

Bylaw 72009 Bylaw 7200 of the City of Saskatoon provides the legal framework

for parking offences. The germane sections from the bylaw are: Pay Station Zone Parking

10(6.2.1) No person shall park in a pay station zone for longer thanthe amount of time purchased.


Penalty

59(1) A person who contravenes any provision of this Bylaw isguilty of an offence.

(2) The penalty for breach of any provisions of this Bylaw shall bethose set out in Schedule No. 10 of this Bylaw.

(3) Unless a justice orders otherwise, a fine for a parking offence isdue and payable 15 days after its imposition.

(3.1) Subject to Subsection (3), the payment of a fine for a parkingoffence is in default when all or any part of the fine is due and unpaidafter 15 days.

(3.2) If all or part of a fine for a parking offence is in default, thevehicle owner shall continue to be liable to pay the fine imposed, andin addition, is liable to pay a late payment charge in the amount of$40.00.

(4) The Court may, in default of payment of a fine imposed underthis Bylaw, order imprisonment of an individual for a term not ex-ceeding one year.

Vicarious Liability

59.1 Notwithstanding any other provision of the Bylaw, the owner ofany vehicle shall be liable for a violation of any provision of thisBylaw, as well as the person who committed the offence, unless theowner proves to the satisfaction of the judge or justice of the peacetrying the case that, at the time of the offence, the vehicle was notbeing operated and had not been parked or left by the owner and wasnot being operated and had not been parked or left by any authorizedperson in charge of the vehicle.

Background10 On the day in question, Velma Night was heading to a conference at

the Bessborough Hotel in downtown Saskatoon. She and her spouseRodney Gopher owned two trucks, one bearing licence plate 550 HRYand the other, bearing licence plate 970 FBY. Ms. Night was driving awhite Dodge truck which had the licence plate 550 HRY.

11 As she pulled into the parking space, she diligently proceeded to theparking kiosk and when prompted to put in her licence plate number, sheinadvertently inputted 970 FBY. Ms. Night then put in the appropriateamount of money for two hours parking. At trial and on appeal, it isaccepted that Ms. Night did pay into the parking kiosk an appropriateamount of money although inputted the wrong licence plate number.


12 At the conference, Ms. Night was advised that there was another areawhere she could park for longer than two hours at a time, so she cameout to move her vehicle only to find that there was a ticket on the frontwindshield.

13 Ms. Night knew she had paid in for two hours parking and was thusuncertain as to why she would have received a ticket. In due course, aftersome interaction with the City, she realized that she had coded in thewrong licence plate number. She explained to the City, suggesting that itshould, on its own, withdraw the ticket. Suffice it to say the City wasunmoved.

14 Ms. Night completed the necessary paperwork in order to contest theticket. The matter came before a Justice of the Peace on July 5, 2016. Asnoted, the Justice of the Peace accepted that Ms. Night had put in theappropriate amount of money and had only made an error with respect tothe licence plate number. He regarded that as “due diligence” and thusacquitted her spouse, Mr. Gopher, of the parking offence.

15 The City of Saskatoon takes exception to the analysis of the Justice ofthe Peace. It appeals on the basis that the learned Justice of the Peaceerred in law in determining a due diligence defence was made out.

16 For this court, sitting on appeal, the issue to be addressed is, do thefacts outlined by Ms. Night, and accepted by the Justice of the Peace,constitute a due diligence defence to a parking ticket offence?

Standard of Review17 Criminal appeals from the Provincial Court to the Queen’s Bench

Court are governed by ss. 683 to 689 of the Criminal Code, RSC 1985, cC-46. In this jurisdiction, I regard the touchstone authority respecting ap-peals from Provincial Court to the Queen’s Bench Court to be set out inR. v. Helm, 2011 SKQB 32, 368 Sask. R. 115 (Sask. Q.B.). The courtarticulated that the standard of review that is engaged is whether there isevidence on which a trier of fact, properly instructed, could reasonablyreach the verdict.

18 The appellate court is not to substitute its own view of the evidencefor that of the trial judge. However, an appellate court is entitled to re-view, re-examine and reweigh the evidence for the purpose of determin-ing if it was reasonably capable of grounding the trial judge’s conclusion.

19 On questions of law, the standard is correctness. The appellate courtis required to intervene if the decision is not correct in law unless, in the


case of a defence appeal, there has been no substantial wrong or miscar-riage of justice that has occurred.

Categories of Criminal Offences20 Prior to the touchstone decision of R. v. Sault Ste. Marie (City),

[1978] 2 S.C.R. 1299 (S.C.C.) [Sault Ste. Marie], there were two recog-nized categories of offences. Firstly, there was the traditional criminaloffence which required the commission of a prohibited act (actus reus)and proof of a certain state of mind in relation to same (mens rea). Bothwere necessary to establish guilt.

21 The second and much narrower category was absolute liability of-fences. For the Crown to make the case in those offences, it only had toprove performance of the act alone (actus reus).

22 Absolute liability offences generally applied to regulatory statutesand guilt was essentially inferred from mere proof of the actus reus,without the accused having an opportunity to argue that he did not have aguilty mind: See Sault Ste. Marie at 1309-10.

23 To address the injustice caused by this arguably simplistic dichotomybetween traditional mens rea offences and absolute liability offences, theSupreme Court in Sault Ste. Marie recognized an intermediate categoryof offence described as “strict liability offence”. In short, Sault Ste.Marie set out three categories of offences to be known at law:

i) Full mens rea offences;

ii) Strict liability offences; and

iii) Absolute liability offence.24 In the first category of offence, mens rea must be proved beyond a

reasonable doubt. Such offences can be considered truly “criminal” inthat they involve a conscious choice to perform a prohibited act, togetherwith knowledge, intent or recklessness that all or some of the relevantcircumstances exist: See Merchant v. Law Society (Saskatchewan), 2009SKCA 33 (Sask. C.A.) at para 48, (2009), 324 Sask. R. 108 (Sask. C.A.)[Merchant].

25 Offences of strict liability contain no necessity to prove mens rea,meaning that the offence is made out once the prohibited act is provedbeyond a reasonable doubt. However, to avoid liability, an accused mayplead due diligence. This defence is available “if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or


omission innocent, or if [the accused] took all reasonable steps to avoidthe particular event.” See Sault Ste. Marie at 1326.

26 The onus is on the accused to establish, on a balance of probabilities,that he or she took all reasonable steps to avoid committing the prohib-ited offence. Proof that the accused took all reasonable care in the cir-cumstances will exonerate him or her of the offence: See R. v. Chapin,[1979] 2 S.C.R. 121 (S.C.C.).

27 Strict liability offences are also often referred to as regulatory of-fences or public welfare offences. Typically, strict liability offences ofteninvolve controlled, restricted or regulated spheres of activity rather than“true crimes”: See Merchant at para 50. Municipal parking offences fallsquarely into the strict liability category.

28 In offences of absolute liability, now a much narrower category,proof of the act itself constitutes the offence. If the Legislature says acertain act is prohibited, punishment follows as soon as that act is estab-lished. Due diligence is not an available defence to this category ofoffences.

29 As noted in Sault Ste. Marie at 1310: In sharp contrast, “absolute liability” entails conviction on proofmerely that the defendant committed the prohibited act constitutingthe actus reus of the offence. There is no relevant mental element. Itis no defence that the accused was entirely without fault. He may bemorally innocent in every sense, yet be branded as a malefactor andpunished as such.

Strict Liability Versus Absolute Liability30 Classifying an offence in one of the three above-mentioned categories

is a question of statutory interpretation. Originally set out in Sault Ste.Marie and more recently reaffirmed in Levis (Ville) c. Tetreault, 2006SCC 12, [2006] 1 S.C.R. 420 (S.C.C.) [Levis (Ville)], LeBel J. said thefollowing:

16 Classifying the offence in one of the three categories now recog-nized in the case law thus becomes a question of statutory interpreta-tion. Dickson J. noted that regulatory or public welfare offences usu-ally fall into the category of strict liability offences rather than that ofmens rea offences. As a general rule, in accordance with the common


law rule that criminal liability ordinarily presupposes the existence offault, they are presumed to belong to the intermediate category:

Public welfare offences would prima facie be in the sec-ond category. They are not subject to the presumption offull mens rea. An offence of this type would fall in thefirst category only if such words as “wilfully,” “with in-tent,” “knowingly,” or “intentionally” are contained in thestatutory provision creating the offence.

(Sault Ste. Marie, at p. 1326)

17 Absolute liability offences still exist, but they have become anexception requiring clear proof of legislative intent. This intent canbe deduced from various factors, the most important of which wouldappear to be the wording of the statute itself:

On the other hand, the principle that punishment should ingeneral not be inflicted on those without fault applies. Of-fences of absolute liability would be those in respect ofwhich the Legislature had made it clear that guilt wouldfollow proof merely of the proscribed act. The overallregulatory pattern adopted by the Legislature, the subjectmatter of the legislation, the importance of the penalty,and the precision of the language used will be primaryconsiderations ....

(Sault Ste. Marie, at p. 1326)

31 As the categories of offences are based on a presumption of statutoryinterpretation, the inclusion of words such as “willfully”, “intentionally”or “knowingly” clearly import a requirement to prove mens rea and findthemselves in the first category of offences demanding full mens rea.

32 Dickson J. (as he then was) noted in Sault Ste. Marie at 1328, on theother hand, that words such as “cause” and “permit” fit much better intoan offence of strict liability. Public welfare offences, such as offencescontained in regulatory statutes, are prima facie strict liability offences:See Saskatchewan (Attorney General) v. Cook (1983), 23 Sask. R. 236(Sask. Q.B.).

33 While the court did not abolish the category of absolute liability of-fences, it held that imposing punitive liability of this nature would violatethe principles of fundamental justice enshrined in the Canadian Charterof Rights and Freedoms where guilt would expose that accused to incar-ceration: See Reference re s. 94(2) of Motor Vehicle Act (British Colum-bia), [1985] 2 S.C.R. 486 (S.C.C.). Accordingly, there is a presumption


against absolute liability offences since they attribute responsibility with-out requiring evidence of the accused’s fault.

34 Parking tickets are regulatory in nature and are thus strict liability of-fences. The provisions of the bylaw which clearly mandate that analysisare:

Payment for Parking Space

55.1(1) The driver of a vehicle who parks in a parking stall or a park-ing space within a metered parking area, pay station zone or ticketcontrolled zone shall forthwith:

a) deposit sufficient coins of Canada or the United States ofAmerica;

b) use an approved City Card which is accepted for electronicpayment; or

c) direct the authorized parking by cell phone service provider

to pay for the time the driver wishes to park in accordance with theinstructions on the meter, pay station or ticket dispenser.

(2) The fees for parking in a metered parking area, pay station zoneor ticket controlled zone are those listed in Schedule No. 9.

(3) The provisions of Subsection (1) shall not apply:

a) on any day between 1800 hours and 0900 hours the next day;

b) on a Sunday; or

c) on New Year’s Day, Good Friday, Victoria Day, CanadaDay, Labour Day, Thanksgiving Day, Remembrance Day,Christmas Day or any civic holiday.

(4) The provisions of Subsection (1) shall not apply to a vehicle dis-playing a valid parking permit issued pursuant to Sections 56, 56.1,56.2, or 56.3.

Additional Information Required

55.2(1) In addition to the requirements set out in Subsection 55.1(1),the driver of a vehicle parked in a pay station zone shall forthwithenter the license plate number of the vehicle or the stall number inwhich the vehicle is parked, in accordance with the instructions onthe pay station.

(2) Incorrect entry of the information required in Subsection (1)shall result in it being deemed that payment was not made for theparking stall or parking space.

[emphasis added]


What Constitutes Due Diligence?35 The doctrine of due diligence allows an accused to escape liability if

he or she can show, on a balance of probabilities, that due care was takento prevent the commission of the prohibited act.

36 The Supreme Court in Levis (Ville) pointed out at para. 15 that “theaccused in fact has both the opportunity to prove due diligence and theburden of doing so. An objective standard is applied under which theconduct of the accused is assessed against that of a reasonable person insimilar circumstances.”

37 This means establishing that he or she took all reasonable steps in thecircumstances to avoid the happening of the prohibited act: See R. v. De-forest, 2013 SKPC 30 (Sask. Prov. Ct.) at para 13, (2013), 413 Sask. R.293 (Sask. Prov. Ct.).

38 It is not enough to simply act reasonably in the abstract, or to takecare in a general sense; instead, this defence requires that acts of dili-gence relate to the external elements of the specific offence at issue: SeeR. v. Alexander (1999), 171 Nfld. & P.E.I.R. 74 (Nfld. C.A.) at para 18.

39 In R. v. Kurtzman (1991), 4 O.R. (3d) 417 (Ont. C.A.), TarnopolskyJ.A. observed at page 429 that “[t]he due diligence defence must relate tothe commission of the prohibited act, not some broader notion of actingreasonably.” [emphasis added]

40 Further, it is insufficient for an accused to argue that he or she wasmistaken as to what the legislation required or what the consequences oftheir act might be — this is merely a mistake of law. Lamer J. in R. v.Molis, [1980] 2 S.C.R. 356 (S.C.C.) observed at page 364 that to amountto a defence, the due diligence must be “in relation to the fulfilment of aduty imposed by law and not in relation to the ascertainment of the exis-tence of a prohibition or its interpretation.”

41 In the instant case, Velma Night deposited the correct amount ofmoney in the parking kiosk but made an error with respect to her licenceplate number. The Justice of the Peace was of the view that “it would beunfair to penalize Mr. Gopher for an error that a reasonable person couldmake. And there was no intent in this case to not pay for parking or towilfully disobey the law.”

42 The Justice of the Peace was of the view that Ms. Night’s best ofintentions was sufficient to make out due diligence and thus save Mr.Gopher from the parking ticket fine.


43 The City accepts that Ms. Night did not intend to break the law and infact deposited the appropriate amount of money. However, the error ininputting the licence plate number is sufficient to trigger liability for theparking ticket.

44 In sum, the City postulates that earnest incompetence should not andcannot be the legal equivalent of due diligence.

Conclusion45 On balance, I agree with the City. Earnest incompetence is not the

legal equivalent of due diligence. More to the point, s. 55.2(2) of theparking bylaw specifically provides by inserting the wrong information,in this case the wrong licence plate number, is, by regulation, non-pay-ment for the parking stall.

46 I understand that the ticket received by Mr. Gopher was $50.00. Iconfirm that he is subject to that fine. The same is to be paid within 30days from the date hereof.

Appeal allowed.

R. v. Meyers 257

[Indexed as: R. v. Meyers]

HER MAJESTY THE QUEEN (APPELLANT) and ROGERMEYERS (RESPONDENT)

Saskatchewan Court of Queen’s Bench

Docket: Weyburn QB CA 3/15

2017 SKQB 29

G.A. Chicoine J.


Criminal law –––– Charter of Rights and Freedoms — Unreasonable searchand seizure [s. 8] — Warrant requirements –––– Accused was charged withimpaired driving and driving with excessive alcohol — Officer sought produc-tion of accused’s medical records from hospital — Accused brought applicationto exclude evidence on basis that it was obtained in violation of his rights unders. 8 of Canadian Charter of Rights and Freedoms — Trial judge found that pro-duction order was invalid as it was not directed against person and that subse-quent production of items listed in production order amounted to illegalsearch — Trial judge excluded evidence and accused was acquitted — Crownappealed — Appeal dismissed — Production order was invalid on its face,therefore manner in which records were obtained violated accused’s rights to besecure against unreasonable search and seizure under s. 8 of Charter — Officerfailed to appreciate difference between warrant to search premises obtainedunder s. 487 of Criminal Code and production order obtained under s.487.012 — It was obvious that officer used wording prescribed in Form 1 forsearch of premises when preparing information to obtain for production order —Officer apparently made no attempt to identify staff person at hospital whowould be in charge of medical records department and responsible to respond toproduction order — Production order was not addressed to individual or even tocorporation but to hospital building — It would be impossible to hold any indi-vidual or corporate entity to account for failing to comply with production orderas it was unknown who received it, who had possession or control of documentsor data and who was responsible to compile and deliver documents or data.

Criminal law –––– Charter of Rights and Freedoms — Charter remedies [s.24] — Exclusion of evidence –––– Accused was charged with impaired drivingand driving with excessive alcohol — Officer sought production of accused’smedical records from hospital — Accused brought application to exclude evi-dence on basis that it was obtained in violation of his rights under s. 8 of Cana-dian Charter of Rights and Freedoms — Trial judge found that production orderwas invalid as it was not directed against person and that subsequent production


of items listed in production order amounted to illegal search — Trial judge ex-cluded evidence and accused was acquitted — Crown appealed — Appeal dis-missed — Trial judge properly considered all factors and his decision to excludeevidence was not interfered with — Trial judge was correct to take into consid-eration that officer’s lack of due diligence in properly identifying person or legalentity to whom production order was to be directed resulted in issuance of orderwhich was invalid — Seizure of accused’s medical records was not judiciallyauthorized and constituted serious violation of his right to be secure against un-reasonable search and seizure — It was reasonable for trial judge to take intoconsideration that there is very high expectation of privacy in medicalrecords — Trial judge made no reviewable error in coming to conclusion that incircumstances of this particular case, society had medium interest in proceedingon merits — Trial judge was entitled to take into consideration that no one otherthan accused was injured in accident.

Cases considered by G.A. Chicoine J.:

R. c. Beaulieu (2010), 2010 SCC 7, 2010 CarswellQue 1137, 2010 CarswellQue1138, (sub nom. R. v. Beaulieu) 251 C.C.C. (3d) 455, 72 C.R. (6th) 199, (subnom. R. v. Beaulieu) 316 D.L.R. (4th) 57, (sub nom. R. v. Beaulieu) 398N.R. 345, [2010] S.C.J. No. 7, (sub nom. R. v. Beaulieu) 207 C.R.R. (2d) 1,(sub nom. R. v. Beaulieu) [2010] 1 S.C.R. 248 (S.C.C.) — considered

R. v. Dersch (1993), 25 C.R. (4th) 88, 33 B.C.A.C. 269, 54 W.A.C. 269, 85C.C.C. (3d) 1, [1993] 3 S.C.R. 768, 158 N.R. 375, 18 C.R.R. (2d) 87, 48M.V.R. (2d) 161, 1993 CarswellBC 508, 1993 CarswellBC 1268, EYB1993-67110, [1993] S.C.J. No. 116 (S.C.C.) — considered

R. v. Erickson (2012), 2012 SKQB 234, 2012 CarswellSask 408, [2012] S.J. No.381, 398 Sask. R. 172 (Sask. Q.B.) — referred to

R. v. Goulbourne (2011), 2011 ONSC 774, 2011 CarswellOnt 701, [2011] O.J.No. 446, 105 O.R. (3d) 303, 267 C.C.C. (3d) 568 (Ont. S.C.J.) — considered

R. v. Grant (2009), 2009 SCC 32, 2009 CarswellOnt 4104, 2009 CarswellOnt4105, 66 C.R. (6th) 1, [2009] S.C.J. No. 32, [2009] A.C.S. No. 32, 245C.C.C. (3d) 1, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 391 N.R. 1, 253O.A.C. 124, [2009] 2 S.C.R. 353, 193 C.R.R. (2d) 1, 97 O.R. (3d) 318(note), EYB 2009-161617 (S.C.C.) — considered

R. v. Halman (2015), 2015 ONCJ 372, 2015 CarswellOnt 10456, [2015] O.J.No. 3728 (Ont. C.J.) — considered

R. v. Helm (2011), 2011 SKQB 32, 2011 CarswellSask 36, [2011] S.J. No. 38, 8M.V.R. (6th) 59, [2011] 6 W.W.R. 641, 368 Sask. R. 115 (Sask. Q.B.) —referred to

R. v. Kratchmer (2012), 2012 SKQB 117, 2012 CarswellSask 188, [2012] S.J.No. 168, 392 Sask. R. 262, 33 M.V.R. (6th) 129 (Sask. Q.B.) — followed

R. v. Nguyen (2011), 2011 ONCA 465, 2011 CarswellOnt 4966, 273 C.C.C. (3d)37, 281 O.A.C. 118, [2011] O.J. No. 2787, 237 C.R.R. (2d) 288 (Ont.C.A.) — considered

R. v. Meyers 259

R. v. Ramos (2011), 2011 SKCA 63, 2011 CarswellSask 350, [2011] S.J. No.327, 371 Sask. R. 308, 518 W.A.C. 308, 238 C.R.R. (2d) 325 (Sask.C.A.) — referred to

R. v. TD Bank Financial Group (2008), 2008 ABPC 316, 2008 CarswellAlta1918, 461 A.R. 273 (Alta. Prov. Ct.) — considered


Bank Act, S.C. 1991, c. 46Generally — referred to


Generally — referred tos. 8 — considereds. 24 — considereds. 24(1) — considereds. 24(2) — considered

Constitutional Questions Act, 2012, S.S. 2012, c. C-29.01s. 13 — considered

Criminal Code, R.S.C. 1985, c. C-46Generally — referred toPt. XXI — referred toPt. XXVII — referred tos. 2 “every one”, “person” and “owner” — considereds. 2 “organization” — considereds. 253(1)(a) — considereds. 253(1)(b) — considereds. 487 — considereds. 487(1) — considereds. 487(3) — considereds. 487.012 [en. 2004, c. 3, s. 7] — considereds. 487.012(1) [en. 2004, c. 3, s. 7] — considereds. 487.012(2) [en. 2004, c. 3, s. 7] — considereds. 487.012(3) [en. 2004, c. 3, s. 7] — considereds. 487.014 [en. 2004, c. 3, s. 7] — considereds. 487.014(2) [en. 2004, c. 3, s. 7] — considereds. 487.017 [en. 2004, c. 3, s. 7] — considereds. 686(4) — considereds. 813(b)(i) — considereds. 822(1) — considereds. 834(1)(b) — considered

Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. AGenerally — referred to

Regional Health Services Act, S.S. 2002, c. R-8.2Generally — referred to


s. 2(2) — considereds. 2(3) — considereds. 16 — considereds. 27 — considered

Forms considered:

Criminal Code, R.S.C. 1985, c. C-46Form 1 — referred toForm 5 — referred toForm 5.004 [en. 2014, c. 31, s. 26] — referred toForm 5.005 [en. 2014, c. 31, s. 26] — referred to

Regulations considered:

Regional Health Services Act, S.S. 2002, c. R-8.2Facility Designation Regulations, R.R.S., c. R-8.2, Reg. 6

Generally — referred to

APPEAL by Crown of acquittal of accused charged with impaired driving anddriving with excessive alcohol.

Adam M. Breker, for CrownJohn M. Williams, for Respondent

G.A. Chicoine J.:

NATURE OF THE APPEAL1 The Crown appeals from the acquittal of the Respondent, Roger Mey-

ers [Mr. Meyers] on March 10, 2015, in Provincial Court on a charge thaton or about May 11, 2013, at Minton District, in the Province of Sas-katchewan, while his ability to operate a motor vehicle was impaired byalcohol, he did operate a motor vehicle contrary to s. 253(1)(a) of theCriminal Code RSC 1985, c C-46, and on a charge that on the same dateand at the same place, having consumed alcohol in such quantity that theconcentration thereof in his blood exceeded eighty milligrams of alcoholin one hundred millilitres of blood, he did operate a motor vehicle con-trary to s. 253(1)(b) of the Criminal Code.

GROUNDS OF APPEAL2 The Notice of Appeal lists two grounds of appeal, restated as follows:

1. The trial judge erred in finding a breach of Mr. Meyers’ rightsagainst unreasonable search and seizure as guaranteed by s. 8 ofthe Canadian Charter of Rights and Freedoms, specifically as it

R. v. Meyers G.A. Chicoine J. 261

relates to the finding that the production order was invalid on itsface, and therefore the production of the hospital medical recordsamounted to an unreasonable violation of Mr. Meyers’ s. 8 Char-ter rights; and

2. The trial judge erred in excluding evidence gathered as a result ofthe search, pursuant to s. 24(2) of the Charter based on the analy-sis set out in R. v. Grant, 2009 SCC 32 (S.C.C.).

3 The Crown seeks an order quashing the acquittals, and remitting thematter to the summary conviction court to continue the trial (voir dire)by addressing the other matters raised by Mr. Meyers on his Charter no-tice, pursuant to s. 834(1)(b) of the Criminal Code, or in the alternative,an order quashing the acquittal and ordering a new trial.

JURISDICTION AND STANDARD OF REVIEW4 The authority for appeals under Part XXVII of the Criminal Code

dealing with summary conviction proceedings is granted under s.813(b)(i) which states that the Attorney General or his agent may appealto this Court from any order that stays proceedings on an information ordismisses an information. Section 822(1) makes certain sections of PartXXI relating to appeals in proceedings in respect of indictable offencesapplicable to appeals in summary conviction proceedings subject to suchmodifications as the circumstances require, including s. 686(4) whichprovides as follows:

686. (4) If an appeal is from an acquittal ... the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) ...enter a verdict of guilty with respect to the offenceof which, in its opinion, the accused should have beenfound guilty but for the error in law, and pass a sen-tence that is warranted in law, or remit the matter tothe trial court and direct the trial court to impose asentence that is warranted in law.

5 It is settled law in this jurisdiction that appeals by the Crown fromacquittals are not restricted to raising only questions of law but may alsoraise matters of fact and mixed fact and law. See: R. v. Helm, 2011SKQB 32 (Sask. Q.B.) at para 16, (2011), 368 Sask. R. 115 (Sask. Q.B.).


6 The standard of review on summary conviction appeals was summa-rized by Ball J. in R. v. Kratchmer, 2012 SKQB 117, 392 Sask. R. 262(Sask. Q.B.), in the following terms:

[23] The scope of this Court’s authority to allow appeals is settled.For appeals brought on the basis that the judgment is unreasonable orcannot be supported by the evidence, the test is whether a properlyinstructed jury, acting reasonably, could have reached such a verdict.An appeal will be allowed where the trial judge has made a palpableand overriding error, but the appeal court must not substitute its ownview of the evidence for that of the trial judge, especially in mattersinvolving findings of credibility. (R. v. Andres, [1982] 2 W.W.R. 249at 251, 1 Sask. R. 96 (C.A.); R. v. S.(P.L.), [1991] 1 S.C.R. 909,[1991] S.C.J. No. 37 (QL).

[24] For appeals brought on the basis of an error of law, reversibleerrors in dealing with evidence can include a misdirection respectingreasonable doubt, a failure to consider the evidence in totality, and amisdirection concerning specific relevant evidence. (R. v. B.(G.),[1990] 2 S.C.R. 57, following R. v. Morin, [1988] 2 S.C.R. 345) Itmay also include an error in erroneously interpreting a Charterbreach (R. v. Yuhas (1993), 114 Sask. R. 34 (Q.B.), [1993] S.J. No.488 (QL)).

7 When the grounds of appeal include an allegation of a breach ofCharter rights, the issues invariably involve questions of mixed fact andlaw. In such cases, the standard of review is correctness. See: R. v. Ra-mos, 2011 SKCA 63 (Sask. C.A.) at para. 19, (2011), 371 Sask. R. 308(Sask. C.A.).

8 Should it be necessary for this Court to determine whether the trialjudge erred in law in excluding evidence under s. 24 of the Charter, thestandard of review is one of reasonableness as considerable deferencemust be accorded to the trial judge’s decision given that it involves theweighing and balancing of various factors. See: R. v. Erickson, 2012SKQB 234 (Sask. Q.B.) at para 17, (2012), 398 Sask. R. 172 (Sask.Q.B.).

THE FACTS9 Prior to the commencement of the trial in Provincial Court on June 5,

2014, counsel for Mr. Meyers had served upon the Attorney General forSaskatchewan and filed with the Court a Notice of Application pursuantto s. 13 of The Constitutional Questions Act, 2012, SS 2012, c C-29.01advising of his intention to seek a remedy under s. 24 of the Charter on


the grounds that the Information to Obtain a Production Order [ITO] didnot disclose reasonable and probable grounds to believe that Mr. Meyershad committed the offence of impaired driving; or that the medicalrecords, toxicology reports or blood samples in the possession of ReginaGeneral Hospital would afford evidence of an offence; or that any suchrecords or documents were in the possession of Regina General Hospital.

10 The Notice of Application also alleged that the ITO was misleadingbecause Corporal Travis Hobson, the affiant, failed to disclose all rele-vant information known to him about the circumstances of the accidentand Mr. Meyers’ condition. Mr. Meyers requested that the ProductionOrder be vitiated. Consequently, any documents obtained as a result ofthe Production Order would have been obtained in violation of his rightsunder s. 8 of the Charter to be secure against unreasonable search orseizure. The appropriate remedy, he suggested, would be an order unders. 24 for exclusion of any evidence obtained pursuant to the ProductionOrder.

11 The trial commenced in the form of a voir dire in order to determinethe issues raised in the Notice of Application. Two police officers werecalled as witnesses on the voir dire.

12 The first witness was Corporal Travis Hobson [Cpl. Hobson], a mem-ber of the Royal Canadian Mounted Police [RCMP] stationed atRadville, Saskatchewan. He testified that on May 11, 2013, at approxi-mately 1:17 p.m. he was dispatched to a motor vehicle accident about ahalf mile south of Minton, Saskatchewan, on Highway 6. Upon arrival atthe scene at approximately 2:10 p.m. he noted that members of the Min-ton Fire Department were already present along with some first respond-ers. There was a blue Dodge Durango on its roof blocking one of thelanes of the highway. Cpl. Hobson was advised by those present that thedriver of the vehicle was the only person involved in this accident andthat he had been taken by ambulance to a hospital for treatment.

13 Cpl. Hobson took some photos of the accident scene including skidmarks and tire tracks. He noted that it was a sunny day with temperaturesin the mid to high twenties (degrees Celsius). The road surface was dryand in normal condition. Cpl. Hobson interviewed two witnesses in hisvehicle prior to leaving the scene. Both of them were the first to arrive atthe accident. They were seeding in a field not far away and had noticedsteam coming from the overturned vehicle. One of them had called 911.These people identified the driver of the vehicle to be Mr. Meyers, whowas their neighbour. They were quite certain that no one else was in-


volved in the accident and Mr. Meyers had confirmed such when theyspoke to him at the scene. They also informed Cpl. Hobson that a nursehad come by and assisted Mr. Meyers before he was placed in the ambu-lance. Cpl. Hobson cleared the accident scene shortly after 3:00 p.m. andreturned to the detachment to document his investigation.

14 Cpl. Hobson made no attempt to attend upon Mr. Meyers. He was notsure to which hospital he had been transported for treatment except toconfirm that it was not the Weyburn hospital. He thereafter assumed thatMr. Meyers had been transported to the General Hospital in Regina. Heeventually confirmed in the early evening of the next day that this wasthe case.

15 Cpl. Hobson never spoke to Mr. Meyers about the accident. He testi-fied that he was confident that Mr. Meyers was the sole occupant andtherefore the driver of the vehicle. He also testified in the voir dire thatthe two neighbours of Mr. Meyers who were the first to attend the acci-dent scene had told him that they smelled a strong odour of alcohol com-ing from him. With this information he began to prepare the ITO. He didnot complete the document however, until after he had interviewed thenurse who assisted at the accident scene. This interview took place onMay 23, 2013, which was 12 days after the accident.

16 Cpl. Hobson further testified that another police officer, ConstableDora Hobson, had assisted him in his investigation by making inquiriesregarding the ownership of the Dodge Durango and where Mr. Meyersresided. He also learned from their CPIC system that Mr. Meyers had acriminal record including a conviction for theft in 1985 and a convictionfor impaired operation of a motor vehicle in 2011. After he had com-pleted the ITO he asked a justice of the peace to attend at the RCMPdetachment. Cpl. Hobson testified that he would have explained to thejustice of the peace why he had been requested to attend. He stated thatthe justice of the peace would then have reviewed his completed ITO.Cpl. Hobson may have answered any questions put to him by the justiceof the peace or provided clarifications if required. He then swore the ITOin the presence of the justice of the peace and the Production Order wasissued. This occurred on May 25, 2013, which was 14 days after theaccident.

17 In the ITO, Cpl. Hobson swore that he had reasonable grounds to be-lieve that Mr. Meyers committed the offences of operating a motor vehi-cle while impaired and operating a motor vehicle while over .08. He alsoswore that medical records, including toxicology reports of tests con-


ducted on blood samples taken from Mr. Meyers while being treated atRegina General Hospital as well as medical records detailing treatmentreceived by Mr. Meyers from staff at Regina General Hospital followingthe collision on May 11, 2013, would afford evidence of the said of-fences. In addition, Cpl. Hobson swore that the said documents or data“are in the possession or control of: Regina General Hospital, 1440-14th

Avenue, Regina, Saskatchewan.”18 Included in the ITO as grounds for his belief that Mr. Meyers had

committed these offences, Cpl. Hobson mentioned that Mr. Meyers wasthe lone occupant of a vehicle involved in a single vehicle roll-over on adry road in good condition. He stated that he had interviewed three wit-nesses who were able to identify Mr. Meyers because they knew himpersonally. One of these witnesses was Lynlee Labatte, who arrived onthe scene approximately five minutes after noticing smoke coming fromthe vehicle moments after the collision. This witness told Cpl. Hobsonthat Mr. Meyers’ responses to his questions were “mumbled and incoher-ent” and that he could smell “a strong, consistent smell of whiskey onMr. Meyers’ breath.” This witness also told Cpl. Hobson that Mr. Mey-ers “is known to have a habit of drinking and driving” and that in hisopinion the mumbling was directly related to the consumption of alcohol.

19 Cpl. Hobson also wrote in the ITO that the second witness, BlaineAxton, who had arrived on the scene at the same time as Mr. Labatte,told him that while he was on the phone with the 911 dispatcher he askedMr. Meyers questions about his injuries. He told Cpl. Hobson that at thistime “he could smell an odour of alcohol on Mr. Meyers’ breath when hespoke.” This witness had described Mr. Meyers’ speech as “somewhatclear.” This witness did not see any alcoholic beverages at the accidentscene. Mr. Meyers had also confirmed that he was the only person in-volved in the accident. Cpl. Hobson also wrote in the ITO that this wit-ness told him that Mr. Meyers “is known to have problems with alcoholand has a history of drinking and driving.” This witness also told himthat Mr. Meyers had been involved in a similar collision a month previ-ous and that it was believed that Mr. Meyers had been drinking prior tothat collision.

20 The third witness quoted by Cpl. Hobson was Leila McClarty. She isa nurse and a first responder. She arrived on the scene shortly after Mr.Labatte and Mr. Axton. She told Cpl. Hobson that Mr. Meyers “had astrong odour of liquor on his breath when he spoke” and that he had “pin


point pupils”. She also stated to Cpl. Hobson that she was aware that Mr.Meyers “has had previous issues with alcohol.”

21 Cpl. Hobson also wrote in the ITO that Mr. Meyers was convicted oftheft in 1985 and had a conviction for impaired operation of a motorvehicle in 2011.

22 In his conclusion in the ITO, Cpl. Hobson wrote that three indepen-dent witnesses made observations of Mr. Meyers shortly after the colli-sion and that each of them had advised him that they could smell a strongodour of liquor on his breath when he spoke, and that two of them hadnoted that Mr. Meyers’ speech was mumbled and incoherent and that hehad ‘pin point’ pupils. He also wrote that these additional observationswere consistent with common signs of impairment. He then stated that hebelieved that evidence linking Mr. Meyers to this offence “is located in-side Regina General Hospital at 1440-14th Avenue, Regina, Saskatche-wan” and that “a search of the establishment for items listed in Appendix‘B” will afford evidence in relation to the alleged offences” of impairedoperation of a motor vehicle and operating a motor vehicle while over.08. Appendix “B” attached to the ITO and the draft Production Orderreads as follows:

Appendix “B”

Items to be Searched For:

1. Medical Records including, but not limited to, toxicology re-ports of tests conducted on blood samples taken from RogerJoseph MEYERS as a result of treatment he received at Re-gina General Hospital, 1440 - 14th Avenue, Regina,Saskatchewan.

2. Medical Records detailing treatment received by Roger Jo-seph MEYERS by hospital staff at Regina General Hospital,1440 - 14th Avenue, Regina, Saskatchewan as a result of hiscollision on May 11, 2013.

23 Cpl. Hobson requested that “should the Warrant be authorized, that itbe valid “from May 25, 2013, at 4:00 p.m. to June 1, at 11:59 p.m. Heconcluded the ITO with the statement that the Information was sworn“for the purpose of obtaining a production order pursuant to s. 487.012 ofthe Criminal Code.”

24 The Production Order that was issued by the Justice of the Peace onMay 25, 2013, is addressed as follows: “To: Regina General Hospital,1440 - 14th Avenue, Regina, Saskatchewan.” The preamble in the Pro-duction Order states that Cpl. Hobson has reasonable grounds to believe


that the referred to offences were committed; that there are reasonablegrounds to believe that the documents and/or data listed in Appendix “B”will afford evidence of the said offences, and further that there are rea-sonable grounds to believe “that the said documents and/or data or somepart of them are in the possession and control of: Regina General Hospi-tal, 1440 - 14th Avenue, Regina, Saskatchewan.

25 The Production Order thereafter reads: IT IS HEREBY ORDERED AS FOLLOWS:

1. Regina General Hospital, 1440 - 14th Avenue, Regina, Sas-katchewan shall produce the above described documentsand/or data to Corporal Travis HOBSON a peace officer, atRadville RCMP Detachment - 521 Bertrand Avenue, Sas-katchewan as soon as reasonably possible but in any eventno later than 14 days from the date of this order.

26 The Production Order thereafter contains five terms and conditionseach of which informs Regina General Hospital, 1440 - 14th Avenue, Re-gina, Saskatchewan what it must or must not do to comply with theorder.

27 In cross-examination, Cpl. Hobson admitted that the nurse, Leila Mc-Clarty, had not used the adjective “strong” in describing the odour ofalcohol coming from Mr. Meyers’ breath. He said that this is what heunderstood from the questions he had asked her. He also admitted thatcontrary to what he stated in the ITO, Ms. McClarty had not told him inher recorded statement that she asked Mr. Meyers what had caused thecollision and that he declined to answer her question. Cpl. Hobson sug-gested that he had another conversation with her that was not part of herstatement. He also acknowledged that while he stated in the ITO that Ms.McClarty advised him that Mr. Meyers had “various lacerations on hisperson”, he did not include that Ms. McClarty had told him that Mr.Meyers had a laceration on his head and that he was in severe pain be-cause of an injury to his lower back. In fact, Cpl. Hobson, did not men-tion any type of head injury in the ITO despite being advised by threewitnesses that they had observed an obvious head injury. Cpl. Hobsonsuggested that it was on oversight on his part.

28 Cpl. Hobson further testified that shortly after the Production Orderwas issued, he turned the investigation over to Cst. Chris Sylvestre. Heleft it to Cst. Sylvestre to “execute” the Production Order. Cpl. Hobsonhad nothing further to do with the file as he was transferred to Ontario.


He never personally received any medical records or other data sought inthe Production Order.

29 Cst. Sylvestre testified that he obtained instructions from Cpl. Hobsonon May 28, 2013 to get the Production Order “executed” in Regina at theRegina General Hospital. On the same date, Cst. Sylvestre e-mailed theProduction Order to Cpl. Kuhn at the Regina RCMP General Investiga-tion Services. He subsequently received confirmation of the ProductionOrder’s “execution” by a Cst. Lafrancoise on May 29, 2013. On July 12,2013, Cst. Sylvestre called the Regina General Hospital to inquire aboutthe medical records relating to Mr. Meyers because he had not yet re-ceived them. The medical records finally arrived on July 24, 2013. Cst.Sylvestre thereafter requested an extrapolation of blood alcohol concen-tration by the RCMP Forensic Analysis Centre to determine Mr. Meyers’blood alcohol concentration at the time of driving.

THE DECISION APPEALED FROM30 The trial judge canvassed three different issues raised by defence

counsel in relation to the validity of the Production Order. The first waswhether the Production Order should be declared invalid because it wasnot directed to a person but to “Regina General Hospital”. The secondwas whether the delay in executing the Production Order could invalidateit. And the third was whether the ITO disclosed reasonable grounds tobelieve that an offence of impaired driving had been committed and thatevidence to support this offence may be in the possession of a third party.

31 The trial judge agreed with the submission of defence counsel that theProduction Order should be declared invalid because it was not directedto a person but instead to a building, namely, Regina General Hospital,1440 - 14th Avenue, Regina, Saskatchewan. In coming to this conclusion,the trial judge reviewed the wording of s. 487.012 of the Criminal Codeunder which an application for a production order can be made, whichreads as follows:

487.012 (1) A justice or judge may order a person, other than a per-son under investigation for an offence referred to in paragraph (3)(a),

(a) to produce documents, or copies of them certified by affidavitto be true copies, or to produce data; or

(b) to prepare a document based on documents or data already inexistence and produce it.

(2) The order shall require the documents or data to be producedwithin the time, at the place and in the form specified and given


(a) to a peace officer named in the order; or

(b) to a public officer named in the order, who has been ap-pointed or designated to administer or enforce a federal orprovincial law and whose duties include the enforcement ofthis or any other Act of Parliament.

(3) Before making an order, the justice or judge must be satisfied, onthe basis of an ex parte application containing information on oath inwriting, that there are reasonable grounds to believe that

(a) an offence against this Act or any other Act of Parliament hasbeen or is suspected to have been committed;

(b) the documents or data will afford evidence respecting thecommission of the offence; and

(c) the person who is subject to the order has possession or con-trol of the documents or data.

32 The trial judge referred to the definition of “person” set out in s. 2 ofthe Criminal Code which states that “every one”, “person” and “owner”,and similar expressions, include Her Majesty and an organization. An“organization” is thereafter defined in s. 2 to mean: (a) a public body,body corporate, society, company, firm, partnership, trade union or mu-nicipality, or (b) an association of persons that (i) is created for a com-mon purpose, (ii) has an operational structure, and (iii) holds itself out tothe public as an association of persons.

33 The trial judge also referred to the definition of “person” in Black’sLaw Dictionary, 9th ed (St. Paul: West Publishing Co. 2009) which inaddition to defining a person as a human also states that a “person” caninclude an entity (such as a corporation) that is recognized at law as hav-ing most of the rights and duties of a human being. In this sense, the termcan include partnerships and other associations, whether incorporated ornot.

34 In his decision, the trial judge indicated that Crown counsel had urgedhim to follow the admonition of the Ontario Court of Appeal in R. v.Nguyen, 2011 ONCA 465 (Ont. C.A.) at para 57, (2011), 237 C.R.R.(2d) 288 (Ont. C.A.) [Nguyen], to the effect that the review of an infor-mation to obtain a search warrant “is not an exercise in examining theconduct of the police with a fine-toothed comb.” The trial judge deter-mined, however, that the issue regarding the “person” to whom the Pro-duction Order was directed was not the kind of issue that was examinedin Nguyen where the court was trying to determine whether the ITO con-tained all the facts it should have, as opposed to whether a key element


of the ITO was correct. The trial judge was of the opinion that “[t]heamount of discretion granted by the courts to officers who have to deter-mine what to include in an ITO should not be extended to allow the ITOto be made in a way which is at odds with the statute.” In other words,the trial judge was of the view that it was proper for him to reviewwhether the use of Regina General Hospital, 1440 - 14th Avenue, Regina,Saskatchewan as the name of the “person” to whom the Production Or-der was directed was in accordance with the requirements of s. 487.012of the Criminal Code.

35 In Saskatchewan, the delivery of health services is regulated underThe Regional Health Services Act, SS 2002 c R-8.2 [RHSA]. This Act hasdivided the province into a number of health regions and regional healthauthorities. The RHSA establishes the Regina Qu’Appelle RegionalHealth Authority as the governing body of the Regina Qu’Appelle HealthRegion. Pursuant to s. 16 of the RHSA, each regional health authority is anon-profit corporation. Under s. 27 of the RHSA, the Regina Qu’AppelleRegional Health Authority is responsible for the planning, organization,delivery and evaluation of health services within the Regina Qu’AppelleHealth Region. Regina General Hospital, located at 1440 - 14th Avenuein the City of Regina, is designated under The Facility Designation Reg-ulations RRS, c R-8.2 Reg 6, as a “provincial hospital” from whichhealth services are provided within the Regina Qu’Appelle Health Re-gion. All of the staff working at Regina General Hospital are employeesof the Regina Qu’Appelle Regional Health Authority.

36 The trial judge dealt with Crown counsel’s argument that there couldbe no confusion between “Regina General Hospital” and “ReginaQu’Appelle Health Region” as the “person” to whom the Production Or-der was directed in the following terms:

34. The Crown has also argued that the distinction [between “ReginaGeneral Hospital” and “Regina Qu’Appelle Health Region”] is sim-ply without merit. They argue that a reasonable person would knowwhat was meant by the Order, and that it is not relevant as ultimately,the Order was complied with. As they point out, the ReginaQu’Appelle Health Region did comply.

35. I place no weight on the fact that the staff who worked for theHealth Region inferred what was meant from the Order and eventu-ally provided the records. The fact that the police eventually obtainedthe information that they were seeking can hardly be said to be evi-dence as to whether the Order was valid. Such a result driven ap-proach would be, to say the least, inconsistent with the law on search


and seizure in Canada. The question is not whether the Order couldbe understood, it is whether the Order is correct.

37 For clarity, I would note that no distinction should be made betweenthe names “Regina Qu’Appelle Regional Health Authority” and “ReginaQu’Appelle Health Region”. Subsections 2(2) and 2(3) of the RHSA pro-vide that where a provision of the Act refers to a regional health region inrelation to a regional health authority, the reference to the health regionis a reference to the health region for which the regional health authorityis established and where a provision of the Act refers to a regional healthauthority in relation to a health care organization, the reference to theregional health authority is a reference to the regional health authority forthe health region in which the health care organization provides healthservices. In this regard, “Regina Qu’Appelle Health Region” is synony-mous with “Regina Qu’Appelle Regional Health Authority”.

38 The trial judge also commented on the importance of properly identi-fying the “person” to whom a Production Order is directed. Otherwise,he concluded, enforcement of the order may be impossible. He stated, atparas. 36 and 37:

36. It is important to remember that, production orders are often is-sued for documents, items, or data which involve an extremely highprivacy interest. The items in this case, medical records obtained af-ter a vehicle accident which resulted in serious injuries, are a goodexample of this. It is simply not the role of the administrative staff atthe hospital to risk criminal sanctions in order to protect the privatemedical records of a potentially impaired driver if they are servedwith a production order such as in this case. These sanctions, listed inthe Order itself, include a maximum of two years imprisonmentunder s. 129 and a fine of up to $250,000 under s. 487.017. As statedin R. v. Sullivan, 2009 BCSC 1769, “this penalty cannot be mini-mized or ignored” (para. 23).

37. Finally, the Crown has commented that the actions of the HealthRegion are not on trial. In some ways, this is precisely the point. Onemight wonder under what circumstances the Health Region couldpossibly be on trial. When an order is against a building, is one toattempt to enforce the order against the owner of the building? Theoccupier? The ordinary residents? It is difficult to see how this sort oforder could be valid if there is no one who it can be enforced against.

39 In support of his opinion that the person who is subject to a produc-tion order is properly identified the trial judge referred to the case of R. v.TD Bank Financial Group, 2008 ABPC 316, 461 A.R. 273 (Alta. Prov.


Ct.), wherein the trial judge set aside a production order directed to “TDBank Financial Group, a body corporate” because there was no such cor-porate entity registered under the Bank Act, S C 1991, c 46. “TD BankFinancial Group” was only a trademark owned by a body corporateknown as “The Toronto Dominion Bank” which is the legal entity regis-tered as a financial institution incorporated under the Bank Act. The trialjudge in that case refused to “recast” the production order to validate itex post facto. He concluded that a trademark by and of itself is incapableof complying with a production order issued under s. 487.012.

40 The trial judge in this case was similarly of the view that any amend-ment required to the Production Order in order to validate it would ineffect require a recasting of the order, which he declined to do. He there-fore came to the conclusion that the Production Order was invalid andthat the Health Region had no legal obligation to provide police with anyrecords relating to Mr. Meyers. He also concluded that since the mannerin which the records were obtained violated s. 8 of the Charter being theright to be secure against any unreasonable search or seizure.

41 The trial judge applied the analysis in R. v. Grant, 2009 SCC 32,[2009] 2 S.C.R. 353 (S.C.C.) [Grant], to determine what remedy shouldfollow as a result of the breach. In coming to the decision that the factthat the Production Order did not name a legal person was sufficient toexclude the evidence obtained pursuant to that order, the trial judge tookinto consideration: (1) the fact that conscriptive evidence such as bodilysubstances is the type of evidence which is normally excluded in casesinvolving a breach of Charter rights; (2) the officer’s failed to act withdiligence in naming the person who had possession of the medicalrecords; (3) the very high expectation of privacy which any hospital pa-tient would have in regard to his/her hospital records; and (4) the me-dium interest of proceeding on the merits in this case because no oneother than Mr. Meyers was injured.

42 The trial judge also considered the issue whether the delay in execut-ing the Production Order would affect its validity. Given his finding thatthe Production Order was not directed at a legal person, the trial judgefound it unnecessary to consider the issue in depth, however he did sug-gest that the delay in getting the medical records in this case was prob-lematic. He was of the view that the provisions of the Criminal Codeshould not be interpreted in a way which would allow an indefinite pe-riod for an order to be fulfilled.


43 In a similar way, given his findings that the Production Order wasinvalid because it was not directed against a person, the trial judge foundit unnecessary to address the arguments whether the ITO was properlydrafted by Cpl. Hobson.

44 In summary, the trial judge found that the Production Order was inva-lid as it was not directed against a person as required by s. 487.012 of theCriminal Code. He decided that because this was not a mistake thatcould be remedied, the subsequent production of the items listed in theProduction Order amounted to an illegal search. He therefore excludedthe evidence. Without this evidence, the Crown was unable to prove thatMr. Meyers committed the offences with which he was charged and Mr.Meyers was accordingly acquitted.

45 Having reviewed the evidence presented in the voir dire, and the rea-sons provided by the trial judge, I will now proceed to deal with thegrounds of appeal presented by the Crown.

LAW AND ANALYLSIS FOR EACH GROUND OF APPEAL

1. Did the trial judge err in finding a breach of Mr. Meyers’ rightsagainst unreasonable search and seizure as guaranteed by s. 8 ofthe Canadian Charter of Rights and Freedoms, specifically as itrelates to the finding that the production order was invalid on itsface, and therefore the production of the hospital medical recordsamounted to an unreasonable violation of Mr. Meyers’ s. 8 Charterrights?

46 I am in agreement with the conclusion reached by the trial judge thatthe production order was invalid on its face. In my opinion, Cpl. Hobsonfailed to appreciate the difference between a warrant to search premisesobtained under s. 487 of the Criminal Code and a production order ob-tained under s. 487.012. The reason for this may be because the CriminalCode provisions, as they existed at the time, blurred the lines between theinformation required to obtain a warrant to search a “building, receptacleor place” and the information required to obtain an order against a “per-son” to produce a document or data.

47 With regard to a warrant to search a building, receptacle or place, ss.487(1) specified that the information to obtain a search warrant must bein Form 1. The form parrots the wording of s. 487. It includes:

The informant says that (describe things to be searched for and of-fence in respect of which search is to be made), and that he believeson reasonable grounds that the said things or some part of them, are


in the (dwelling house, etc.) of C.D., of .......... in the said (territorialdivision). (Here add the grounds of belief, whatever they may be.)

Wherefore the informant prays that a search warrant may be grantedto search the said (dwelling-house, etc.) for the said things.

48 The form of the warrant is also prescribed in s. 487(3) which statesthat a search warrant may be in the form set out as Form 5 in PartXXVIII, varied to suit the case.

49 On the other hand, with regard to obtaining a production order unders. 487.012, no form for the information was prescribed. Subsection487.012(3) simply stated that before making an order, the justice orjudge must be satisfied, on the basis of an ex parte application containinginformation on oath in writing, that grounds exist for the issuing a pro-duction order. The form of the order was also not prescribed in s.487.012.

50 It is obvious in this case that Cpl. Hobson used wording prescribed inForm 1 for search of premises when preparing the ITO for the ProductionOrder. As noted at para. 22 above, Cpl. Hobson stated that he believedthat evidence linking Mr. Meyers to this offence “is located inside Re-gina General Hospital at 1440-14th Avenue, Regina, Saskatchewan” andthat “a search of the establishment for items listed in Appendix ‘B” willafford evidence in relation to the alleged offences”. At another point inthe ITO, he requests that if the “warrant” is authorized, that it should bevalid between certain specified dates.

51 I also find it peculiar that Cpl. Hobson apparently made no attemptwhatsoever to identify the staff person at Reginal General Hospital whowould be in charge of the medical records department and responsible torespond to a production order. In the case of R. v. Halman, 2015 ONCJ372, [2015] O.J. No. 3728 (Ont. C.J.), for example, the investigating of-fer stated in the ITO that he attended the Health Records and PatientRegistration Department at Sunnybrook Health Sciences Centre in To-ronto and spoke with the supervisor for the Research and Release of In-formation Section whom he identified by name. As a result of that con-versation, he was able to learn that the suspected impaired driver’smedical records pertaining to his stay at the hospital were located insidethe Health Data Resources Department, Room E123. He also learned thatblood had been analysed and was sent to a particular laboratory. The sus-pected impaired driver took issue with the release by the supervisor ofthis basic information confirming that he had received treatment at thishospital and that a blood sample had been drawn. He considered this to


be a breach of his privacy rights. The trial judge found, however, (atpara. 62) that the investigating officer had not attended with the expresspurpose of obtaining the medical information but attended for the pur-pose of understanding the procedure relevant to his intention to seek ju-dicial authorization to seize medical information. He also found that thesupervisor had not breached Ontario’s Personal Health Information Pro-tection Act, 2004, SO 2004, c 3, Sch A, when he disclosed informationfor the express purpose of facilitating a police investigation in prepara-tion of a warrant.

52 As noted above, the Production Order that was issued by the Justiceof the Peace on May 25, 2013, was not addressed to an individual oreven to a corporation, but to Regina General Hospital, 1440 - 14th Ave-nue, Regina, Saskatchewan. In addition, the preamble to the ProductionOrder stated that there are reasonable grounds to believe “that the saiddocuments and/or data or some part of them are in the possession andcontrol of: Regina General Hospital, 1440 - 14th Avenue, Regina, Sas-katchewan.” Finally, the Production Order ordered Regina General Hos-pital, 1440 - 14th Avenue, Regina, Saskatchewan to produce the docu-ments and data to Cpl. Hobson and instructed Regina General Hospital,1440 - 14th Avenue, Regina, Saskatchewan what it must or must not do tocomply with the order.

53 In the circumstances, I agree with the trial judge that it would be im-possible to hold any individual or corporate entity to account for failingto comply with the Production Order under s. 487.017 as we do not knowwho received the Production Order, who had possession or control of thedocuments or data, and who was responsible to compile and deliver thatdocuments or data referred to in the Production Order to the peace officementioned therein. The evidence was only that the Production Order was“executed” by Cst. Lafrancoise on May 29, 2013, but no person wasidentified as the recipient of the document. No one had acted upon theProduction Order by July 12, 2013, when Cst. Sylvestre called to inquireand the medical records were not delivered until July 24, 2103. It ishardly surprising given the failure to identify who at Regina GeneralHospital was in charge of medical records. At a minimum, the Produc-tion Order should have been directed to Regina Qu’Appelle Health Au-thority and served upon someone who had authority to accept service ofprocess on its behalf. Presumably, the health authority would then haveinstructed an employee in charge of medical records at Regina GeneralHospital to comply with the Production Order. The Regina Qu’AppelleHealth Authority, a corporate entity, would be liable to prosecution under


s. 487.017 if it did not comply with a production order made under s.487.012. I concur with the trial judge’s conclusion that the ProductionOrder, as drafted in this case, was invalid on its face because it was di-rected to a building and not to a person as required by law.

54 There is one further observation that I would make. On March 10,2015, amendments to the Criminal Code came into effect which repealedthe existing s. 487.012 dealing with production orders made against thirdparties for documents and data and replaced it with s. 487.014 whichcreated a new, generally applicable production order provision. One ofthe differences is that under the new provision the standard of “reasona-ble grounds to believe” is applied both to whether an offence has or maybe committed and to whether certain documents or data will afford evi-dence respecting commission of the offence. Another difference is that aproduction order now only applies to copies of documents — a searchwarrant must now be obtained if originals are required. Another interest-ing change, however, is that forms are now prescribed both for the sworninformation and the order itself. Subsection 487.014(2) states that the in-formation to obtain must be in Form 5.004 and that the order must be inForm 5.005. Form 5.004 instructs the informant to use the “name of theperson” who has possession or control of the document or data. Simi-larly, Form 5.005 instructs the user of the form to insert the “name ofperson” to whom the production order is directed. These new formswould undoubtedly have been of assistance to Cpl. Hobson had theybeen in existence when he was investigating the Mr. Meyers’ accident inMay of 2013.

55 In summary, I agree with the decision of the trial judge to the effectthat the Production Order was invalid on its face and that the Health Re-gion (Regina Qu’Appelle Health Authority being the corporate entity)had no legal obligation to provide the police with any of the records re-lating to Mr. Meyers. The Production Order being invalid, the manner inwhich the records were obtained violated Mr. Meyers’ rights to be secureagainst unreasonable search or seizure under s. 8 of the Charter.

2. Did the trial judge err in excluding evidence gathered as a result ofthe search, pursuant to s. 24(2) of the Charter based on the analysisset out in R. v. Grant?

56 Subsection 24(1) of the Charter allows anyone whose rights or free-doms have been infringed or denied to apply to obtain a remedy as thecourt considers appropriate and just in the circumstances. Subsection


24(2) provides that if a court concludes that evidence was obtained in amanner that infringed or denied any rights or freedoms guaranteed by theCharter, the evidence must be excluded if it is established that, havingregard to all the circumstances, the admission of it in the proceedingswould bring the administration of justice into disrepute.

57 In Grant, the Supreme Court stated (at para. 68) that the phrase“bring the administration of justice into disrepute” must be understood inthe long-term sense of maintaining the integrity of, and public confi-dence in the justice system. The Court noted that while exclusion of evi-dence that results in an acquittal may provoke immediate criticism, it isthe overall repute of the justice system, viewed in the long term, which isto be considered.

58 The Supreme Court set forth the criteria to be considered in making adetermination whether to exclude evidence or not in the following terms(at para. 71):

71 A review of the authorities suggests that whether the admission ofevidence obtained in breach of the Charter would bring the adminis-tration of justice into disrepute engages three avenues of inquiry,each rooted in the public interests engaged by s. 24(2), viewed in along-term, forward-looking and societal perspective. When facedwith an application for exclusion under s. 24(2), a court must assessand balance the effect of admitting the evidence on society’s confi-dence in the justice system having regard to: (1) the seriousness ofthe Charter-infringing state conduct (admission may send the mes-sage the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the ac-cused (admission may send the message that individual rights countfor little), and (3) society’s interest in the adjudication of the case onits merits. The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determinewhether, considering all the circumstances, admission of the evi-dence would bring the administration of justice into disrepute. Theseconcerns, while not precisely tracking the categories of considera-tions set out in Collins [[1987] 1 SCR 265] capture the factors rele-vant to the s. 24(2) determination as enunciated in Collins and subse-quent jurisprudence.

59 In the present case, the trial judge summarized his obligation to applythe analysis set out in Grant as requiring a consideration of the serious-ness of the state conduct, the influence on the Charter protected interestsof the accused, and society’s interest in adjudicating on the merits of thecase. In this regard, he was of the opinion that conscriptive evidence such


as bodily substances is the type of evidence which is normally excludedin cases involving a breach of Charter rights; that the officer failed to actwith diligence in naming the person who had possession of the medicalrecords; and that any hospital patient would have a very high expectationof privacy in his/her hospital records. He was further of the view thatsociety had a medium interest in proceeding on the merits in this casebecause no one other than Mr. Meyers was injured. He concluded thatthe fact that the Production Order did not name a legal person was suffi-cient to exclude the evidence obtained pursuant to that order.

60 In Grant, (at para. 86) the Supreme Court stated that if the trial judgeconsidered the proper factors in assessing the effect of the admission ofthe evidence on the repute of the administration of justice, appellatecourts should accord considerable deference to his or her ultimate deci-sion. This admonition reaffirmed in R. c. Beaulieu, 2010 SCC 7 (S.C.C.),at para 5, [2010] 1 S.C.R. 248 (S.C.C.), wherein the Court repeated that“considerable deference” is owed to a trial judge’s s. 24(2) assessment ofwhat would bring the administration of justice into disrepute having re-gard to all the circumstances.

61 In this case, I am of the view that the trial judge properly consideredall of the factors mentioned in Grant and that his decision to exclude theevidence should not be interfered with. As regards the first branch of theGrant analysis, I am satisfied that the trial judge was correct to take intoconsideration that Cpl. Hobson’s lack of due diligence in properly identi-fying the person or legal entity to whom the Production Order was to bedirected resulted in the issuance of an order which was invalid. As a con-sequence, the seizure of Mr. Meyers’s medical records was not judiciallyauthorized and constituted a serious violation of his right to be secureagainst unreasonable search or seizure.

62 As regards the second branch of the Grant analysis, the impact of thebreach on Mr. Meyers’ Charter protected interests, I am of the view thatit was reasonable for the trial judge to take into consideration that there isa very high expectation of privacy in medical records. The SupremeCourt of Canada stated as much in R. v. Dersch, [1993] 3 S.C.R. 768(S.C.C.), referred to by the trial judge, which was a case where a bloodsample was taken by the doctor from a patient involved in a motor vehi-cle accident without the patient’s consent and subsequently analysed foralcohol content. Results of the blood analysis were provided to the policebefore a warrant was issued to seize the blood sample, resulting in a


breach of the patient’s s. 8 Charter rights. The Supreme Court stated atpara. 23:

23 While there may be instances of doctors and hospitals releasingneutral medical information, such as the presence of the patient in thehospital, in this case the appellant had a reasonable expectation thatthe specific medical information revealed by Dr. Gilbert, includingthe blood alcohol test results, would be kept confidential by the doc-tors and the hospital.

In that case, the Supreme Court concluded that evidence of the blood testresults should be excluded even though this would result in an acquittalon a charge of causing death and bodily harm by having care and controlof a motor vehicle while impaired by alcohol.

63 As regards the third branch of the Grant analysis, I am similarly ofthe view that the trial judge made no reviewable error in coming to theconclusion that in the circumstances of this particular case, society had amedium interest in proceeding on the merits. The trial judge was fullycognizant of the fact that drinking and driving is a serious crime whetherinjuries result or not. He was entitled to take into consideration, however,that in this case no one other than Mr. Meyers was injured in theaccident.

64 In my opinion, the trial judge properly considered all of the factors setforth in Grant in making the s. 24 analysis whether to exclude the evi-dence obtained in breach of Mr. Meyers’s Charter rights. Accordingly, Iwould dismiss this ground of appeal and confirm his ruling on the voirdire that the medical evidence obtained pursuant to an invalid productionorder should be excluded.

OTHER ISSUES65 Counsel for Crown in his brief and at the hearing of this appeal urged

this Court to find that the trial judge erred in expressing his opinion thatthe Production Order in this case had expired before the medical recordswere delivered to the RCMP. As noted above, the Production Order thatwas issued on May 25, 2013, required Regina General Hospital, 1440 -14th Avenue, Regina, Saskatchewan to produce the medical records toCpl. Hobson at the address of the Radville RCMP Detachment “as soonas reasonably possible but in any event no later than 14 days from thedate of this order.” That meant that the order should have been compliedwith by June 8, 2013. The medical records did not arrive at the RadvilleRCMP Detachment until July 24, 2013.


66 At the trial, Counsel for the Crown had referred to the case of R. v.Goulbourne, 2011 ONSC 774, 267 C.C.C. (3d) 568 (Ont. S.C.J.), whichhad ruled that production orders, once issued, continue to compel thethird party to release all information sought even if the period for compli-ance set out on the face of the order has passed. The trial judge decidedthat it was unnecessary to renew the production order in this case or toapply for a new production order.

67 In the present case, the trial judge was of the view that a productionorder should not be interpreted in a way which would allow an indefiniteperiod for it to be fulfilled because the third party would then be obli-gated to produce documents which might not have come into being untila date after the compliance date set out in the order, making the orderone of indefinite duration. He gave as an example a scenario where Mr.Meyers may have attended Regina General Hospital for follow-up treat-ment or even for treatment totally unrelated to the injuries he sustainedon May 11, 2013.

68 In my opinion the Production Order that was “executed” at ReginaGeneral Hospital, 1440 - 14th Avenue, Regina, Saskatchewan did not ex-pire on June 8, 2013. The medical records were eventually delivered inaccordance with the order. Should the medical records have includeddocuments which were unrelated, the injuries sustained by Mr. Meyerson May 11, 2013, as defined in the Production Order, those superfluousrecords could have been excluded by the trial judge. It is more important,in my view, that the Production Order be deemed to be valid beyond thedate for third party compliance otherwise third party record holders couldfail to comply within the time required and imperil the Crown’s ability toprove the offence. The suspect would then be the beneficiary of the thirdparty’s non-compliance. Prosecuting the third party record holder fornon-compliance would not compensate the Crown’s inability to prove itscase against the suspected offender.

69 Given that the Production Order was deemed by the trial judge to beinvalid on its face — a determination upheld by this Court on appeal —the issue regarding the failure of the third party to comply with the orderwithin the time stated in the order need not be definitively decided in thiscase.

70 Similarly, the issue whether Cpl. Hobson provided all relevant infor-mation to the Justice of the Peace in the ITO or whether he mischaracter-ized some of the evidence given to him by the witnesses at the accidentscene regarding Mr. Meyers’ condition and whether he smelled of alco-


hol need not be decided on this appeal. The trial judge declined to ad-dress the issue of the sub-facial validity of the Production Order giventhat he had decided that it was invalid on its face. I also decline to ex-press any opinion in this regard as the finding of facial invalidity fullyconcludes this case.

DISPOSITION71 In summary, I have made the following determinations on this appeal:

1. I uphold the decision of the trial judge to the effect that the Pro-duction Order was invalid on its face and that Regina Qu’AppelleHealth Authority being the corporate had no legal obligation toprovide the police with any of the records relating to Mr. Meyers.The Production Order being invalid, the manner in which therecords were obtained violated Mr. Meyers’ rights to be secureagainst unreasonable search or seizure under s. 8 of the Charter.

2. I find that the trial judge properly considered all of the factors setforth in Grant in making the s. 24 analysis whether to exclude theevidence obtained in breach of Mr. Meyers’s Charter rights andconfirm his ruling on the voir dire that the medical evidence ob-tained pursuant to an invalid production order should be excluded.

72 In the circumstances, the Crown’s appeal is dismissed and the acquit-tals on both the s. 253(1)(a) and the s. 253(1)(b) charges are confirmed.

Appeal dismissed.


[Indexed as: Housser v. Niagara Regional Police Service]

DALE HOUSSER (Plaintiff / Appellant) and NIAGARAREGIONAL POLICE SERVICE, REGIONAL

MUNICIPALITY OF NIAGARA POLICE SERVICES, andSCOTT KRAUSHAR (Defendants / Respondents)

Ontario Superior Court of Justice (Divisional Court)

Docket: Hamilton DC-16-718

2017 ONSC 1010

Sachs, Stewart, Spies JJ.

Heard: February 9, 2017


Law enforcement agencies –––– Police — Duties, rights and liabilities of of-ficers — Conduct of officers — Negligence –––– Police officer who was driv-ing unmarked car and not in uniform claimed to observe plaintiff speeding —When officer activated his emergency lights, not all of them worked and plain-tiff thought officer was not true police officer — After chase, officer pulledplaintiff out of his car, pushed him up against it, and handcuffed him, whichallegedly caused some physical soreness and serious psychiatric injury — Plain-tiff’s action against police service and officer for negligence and assault wasdismissed — Trial judge found that arrest was lawful, that officer did not twistplaintiff’s arm, and that no assault or negligence was involved — Plaintiff ap-pealed dismissal of his action — Appeal dismissed — Trial judge carefully re-viewed evidence, including expert evidence, and determined case largely on hisassessment of reliability of witnesses — Trial judge found that plaintiff’s evi-dence was contrived and dishonest, and that events occurred as police officerstestified — His findings of credibility and reliability were entitled to deferenceand were sufficient to support conclusion that officer was readily identifiable aspolice officer, even without uniform and operating red lights — Based on evi-dence, trial judge was entitled to conclude that officer had reasonable and proba-ble grounds to believe plaintiff was evading police when he failed to pull overand stop his vehicle — Trial judge was in best position to assess credibility andreliability of witnesses, and his reasons did not disclose any palpable and over-riding errors in facts that he found, including that plaintiff was speeding and thatofficer did not use excessive force — There was no evidence of physical harm,and evidence of plaintiff’s expert with respect to psychological damages suf-fered because of expert’s reliance on facts that trial judge did not accept — Trialjudge’s finding were all amply supported by evidence.

Housser v. Niagara Regional Police Service 283

Law enforcement agencies –––– Police — Duties, rights and liabilities of of-ficers — Conduct of officers — Use of force –––– Police officer who was driv-ing unmarked car and not in uniform claimed to observe plaintiff speeding —When officer activated his emergency lights, not all of them worked and plain-tiff thought officer was not true police officer — After chase, officer pulledplaintiff out of his car, pushed him up against it, and handcuffed him, whichallegedly caused some physical soreness and serious psychiatric injury — Plain-tiff’s action against police service and officer for negligence and assault wasdismissed — Trial judge found that arrest was lawful, that officer did not twistplaintiff’s arm, and that no assault or negligence was involved — Plaintiff ap-pealed dismissal of his action — Appeal dismissed — Trial judge carefully re-viewed evidence, including expert evidence, and determined case largely on hisassessment of reliability of witnesses — Trial judge found that plaintiff’s evi-dence was contrived and dishonest, and that events occurred as police officerstestified — His findings of credibility and reliability were entitled to deferenceand were sufficient to support conclusion that officer was readily identifiable aspolice officer, even without uniform and operating red lights — Based on evi-dence, trial judge was entitled to conclude that officer had reasonable and proba-ble grounds to believe plaintiff was evading police when he failed to pull overand stop his vehicle — Trial judge was in best position to assess credibility andreliability of witnesses, and his reasons did not disclose any palpable and over-riding errors in facts that he found, including that plaintiff was speeding and thatofficer did not use excessive force — There was no evidence of physical harm,and evidence of plaintiff’s expert with respect to psychological damages suf-fered because of expert’s reliance on facts that trial judge did not accept — Trialjudge’s finding were all amply supported by evidence.



Generally — referred toCriminal Code, R.S.C. 1985, c. C-46

s. 249.1(1) [en. 2000, c. 2, s. 1] — consideredHighway Traffic Act, R.S.O. 1990, c. H.8

Generally — referred tos. 216(1) — considered

Rules considered:

Rules of Civil Procedure, R.R.O. 1990, Reg. 194Generally — referred to

APPEAL by accused from judgment reported at Housser v. Niagara RegionalPolice Services Board (2016), 2016 ONSC 589, 2016 CarswellOnt 2099 (Ont.S.C.J.), dismissing his action against police for negligence and assault.


Margaret Hoy, for Plaintiff / AppellantMickey Cruickshank, for Defendants / Respondents

Spies J. (orally):

1 Mr. Dale Housser appeals the dismissal of his action by Mr. JusticeRamsay following a five-day trial. For written reasons released January25th, 2016, the trial judge found that the Appellant had not proven hisclaims against the Defendants for damages for assault, negligence, andbreach of the Charter.

2 The Appellant has submitted that the trial judge committed numerouserrors of law, fact, and mixed fact and law. To the extent errors of laware relied upon, the Appellant must establish that the trial judge’s deci-sion is not correct. To the extent that the Appellant relies on findings offact or mixed fact and law, he must establish that the trial judge made apalpable and overriding error.

3 The trial judge gave extensive reasons for his decision. He carefullyreviewed the evidence, including the evidence of experts called by theAppellant and the Respondents. The case was determined largely as aresult of the trial judge’s assessment of the credibility and reliability ofthe witnesses who testified. For reasons given, the trial judge found theAppellant gave evidence that was contrived and dishonest, that the Ap-pellant had difficulty perceiving events in a reasonable way, and that he,the trial judge, found it difficult to rely on the evidence of someone withsuch an unrealistic view of the world. As for the other witness called bythe Appellant, the trial judge gave extensive reasons for why he did notfind her evidence reliable. As for the Respondent Sergeant Kraushar andthe other officer called by the Respondents, the trial judge found that theevents occurred as these officers testified.

4 Ms. Hoy, counsel for the Appellant, emphasized in her oral submis-sions that Sergeant Kraushar did not have operating red lights on the rearof his unmarked vehicle as found by the trial judge. Based on our reviewof the evidence given at trial, we are satisfied that the trial judge made anerror in so finding. In fact, the lights at the rear of his car were whitestrobe lights. That said, we are not satisfied that this error materially af-fected the reasoning of the trial judge in making his findings of credibil-ity and reliability, and his conclusion that the stop and the arrest werelawful and that Sergeant Kraushar had reasonable and probable groundsto believe the Appellant was evading police.

Housser v. Niagara Regional Police Service Spies J. 285

5 The essence of the Appellant’s submission on liability is that Ser-geant Kraushar did not have the right to stop the Appellant and that hedid not have reasonable and probable grounds to arrest the Appellant forfailure to stop. The power of a police officer to stop a vehicle emanatesfrom section 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8.This section provides as follows: “A police officer, in the lawful execu-tion of his or her duties and responsibilities, may require the driver of amotor vehicle to stop and the driver of a motor vehicle, when signalled orrequested to stop by a police officer who is readily identifiable as such,shall immediately come to a safe stop.”

6 According to the Appellant, because Sergeant Kraushar was drivingin an unmarked police car, was not in uniform and had no operating redlights, Sergeant Kraushar was not “readily identifiable” as a police of-ficer. This was particularly the case in light of what the Appellant de-scribed as a press release which he claimed warned motorists about per-sons who were in unmarked cars impersonating as police officers. Thetrial judge considered and rejected this submission. In his view, any sen-sible person would have identified Sergeant Kraushar as a police officer.In coming to this conclusion, he found that Sergeant Kraushar turned onhis siren and lights, that other motorists did pull over, that SergeantKraushar showed his badge while he was driving next to the Appellant’svehicle and that Sergeant Kraushar did not drive erratically. These find-ings are entitled to deference and are sufficient to support the conclusionthat Sergeant Kraushar was readily identifiable as a police officer, evenwithout operating red lights.

7 We agree that the contents of the press release might be relevant to adefence by the Appellant for why he did not stop, but they do not affectthe correctness of the trial judge’s analysis of whether or not SergeantKraushar was readily identifiable as a police officer.

8 With respect to whether or not Sergeant Kraushar had reasonable andprobable grounds to arrest the Appellant for failure to stop, the Appellantsubmits that failure to stop is a Highway Traffic Act offence alone andcarries with it no powers of arrest. We disagree. Section 249.1(1) of theCriminal Code provides as follows: “Every one commits an offence who,operating a motor vehicle while being pursued by a peace officer operat-ing a motor vehicle, fails, without reasonable excuse and in order toevade the peace officer, to stop the vehicle as soon as is reasonable in thecircumstances.” In our view, the trial judge, based on the evidence beforehim, was entitled to conclude as he did that Sergeant Kraushar had rea-


sonable and probable grounds to believe the Appellant committed thisoffence when he failed to pull over and stop his vehicle.

9 The trial judge was in the best position to assess the credibility andreliability of the witnesses. His findings in that regard must be given def-erence. We have considered the Appellant’s submissions in her factum aswell. In our view, the reasons of the trial judge do not disclose that hemade any palpable and overriding errors in reaching his findings on thecredibility and reliability of the witnesses. Having made these findings,we are also satisfied that the trial judge made no palpable and overridingerrors in the facts that he found, including his finding that the Appellantwas speeding and that Sergeant Kraushar did not use excessive force.

10 To the extent that the trial judge’s findings relied on the law, we findthat the trial judge’s application of the law to the facts as he found themwas correct.

11 Finally, with respect to the trial judge’s finding on the claims fordamages, there was no evidence of physical harm. As for psychologicaldamages, the trial judge carefully assessed the evidence of each of theexperts and found that they were not that far apart, but that the Appel-lant’s expert’s opinion suffered because of his reliance on facts the trialjudge did not accept. The trial judge also considered the fact that despitethe complaints of the Appellant, he was able to move to another prov-ince, establish a new career, and remarry. All of the findings of the trialjudge, including his assessment of the quantum of damages had liabilitybeen established, were amply supported by the evidence.

12 For these reasons, the appeal is dismissed.

H. Sachs J.:13 For reasons given orally by Spies J., this appeal is dismissed. The

Respondents, as the successful parties, are entitled to their costs of thisappeal. However, contrary to the Rules, they have not brought a bill ofcosts to support their request. In view of this and in view of the ratherunusual and somewhat unfortunate circumstances that gave rise to thisaction, we fix the Respondent’s costs at $3,500.00 all-inclusive.

Sachs J.:

I agree

Housser v. Niagara Regional Police Service Stewart J. 287

Stewart J.:

I agree

Appeal dismissed.


[Indexed as: R. v. Scott]

REGINA against RONALD SCOTT

Ontario Superior Court of Justice

Docket: Picton CR-16-00000236-0000

2017 ONSC 753

Helen Macleod-Beliveau J.

Heard: January 20, 2017


Criminal law –––– Offences — Impaired driving causing death — Sentenc-ing –––– Aboriginal accused pleaded guilty to impaired driving causing death —Accused was 34 years old and he did not have criminal record — At time ofaccident accused was driving 100 kilometres per hour in 80 kilometre per hourzone on curved road — Accused was drunk at accident scene and he tried tohide his identity — Accused was volunteer firefighter and he was employed ascorrectional officer at maximum security institution — Accused lost his employ-ment, for which he worked very hard to obtain, because he was ineligible for itdue to his conviction — Accused was in positive relationship with his girlfriendwho had three children — Accused sentenced to five years’ imprisonment —Accused was also subject to five-year driving prohibition which would com-mence upon his release from penitentiary.

Cases considered by Helen Macleod-Beliveau J.:

R. c. Lacasse (2015), 2015 SCC 64, 2015 CSC 64, 2015 CarswellQue 11715,2015 CarswellQue 11716, [2015] S.C.J. No. 64, [2015] A.C.S. No. 64, 86M.V.R. (6th) 1, 24 C.R. (7th) 225, (sub nom. R. v. Lacasse) 478 N.R. 319,[2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, 396 D.L.R. (4th) 214(S.C.C.) — considered

R. v. McVeigh (1985), 22 C.C.C. (3d) 145, 11 O.A.C. 345, 1985 CarswellOnt1389, [1985] O.J. No. 207 (Ont. C.A.) — considered

R. v. Proulx (2000), 2000 SCC 5, 2000 CarswellMan 32, 2000 CarswellMan 33,[2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, 30 C.R. (5th) 1, 182 D.L.R. (4th)1, 249 N.R. 201, [2000] 4 W.W.R. 21, 49 M.V.R. (3d) 163, [2000] 1 S.C.R.61, 142 Man. R. (2d) 161, 212 W.A.C. 161, [2000] A.C.S. No. 6 (S.C.C.) —considered

R. v. Ramage (2010), 2010 ONCA 488, 2010 CarswellOnt 4956, [2010] O.J. No.2970, 96 M.V.R. (5th) 1, 257 C.C.C. (3d) 261, 77 C.R. (6th) 134, 265O.A.C. 158, 213 C.R.R. (2d) 291 (Ont. C.A.) — considered

R. v. Scott Helen Macleod-Beliveau J. 289


Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 109(2)(a)(ii) — considereds. 255(3) — referred tos. 259(2)(a.1) [en. 2008, c. 18, s. 8(2)] — considereds. 718 — considereds. 718.1 [en. R.S.C. 1985, c. 27 (1st Supp.), s. 156] — considereds. 718.2 [en. 1995, c. 22, s. 6] — considered

SENTENCING of accused on conviction for impaired driving causing death.

Paul Layefsky, for CrownClyde Smith, for Defence

Helen Macleod-Beliveau J. (orally):

1 This is the sentencing matter of Ronald Scott who stands before metoday having plead guilty to the charge that on the 6th day of September2015 that he, while his ability to operate a motor vehicle was impaired byalcohol, did operate a motor vehicle and did thereby cause the death ofShawn Way, contrary to section 255(3) of the Criminal Code of Canada.

2 The charge of impaired driving causing death is one of the most seri-ous offences that are provided for in the Criminal Code. The fatality ofany citizen in our community due to the conduct of another that is unlaw-ful, is something which the court must pay significant attention to in or-der to address the carnage on the roadways caused by impaired driving.

3 I say to the family of Shawn Way that there is no sentence, there is nodriving prohibition, there are no orders that I can make today that willbring back your loved one. Obviously, if that was possible, it would havelong been done. I appreciate you coming from great distances today and Iam proceeding with the sentencing immediately after submissions to ac-commodate you so that you can put this behind you and move forwardand keep the positive things about your loved one in mind and put thisnegative situation farther back in your memories as life goes on.

4 I also say to the family of Ronald Scott, you also have lost a familymember. You have lost the person that you knew as Ronald Scott whowas a contributing member of the community, a volunteer fireman and aCorrectional Officer who had established and achieved great success in


his life. That instant when Mr. Scott chose to first of all drink, which isnot a crime but what is a crime is that he chose to drink and drive.

5 The task I have before me today is indeed the most difficult that aTrial Judge has in terms of the work done by the court. As Justice Sosnasaid in the R. v. Ramage, [2010] O.J. No. 2970 (Ont. C.A.): “My respon-sibility in this matter is to impose a sentence on the offender who is anexemplary citizen who has committed a serious crime with tragic conse-quences. It is not an easy task but the message of general deterrence mustbe met”.

6 Over my length of experience on the bench of now 28 years, I haveseen a lot of carnage on the roadway and a lot of people killed. No sen-tencing for this type of offence gets easier. In fact; it gets more difficult.We have a loss in two families here and my approach is to focus in onwhat are the principles of sentencing and hope that my remarks and mysentence will reflect a very strong message of general deterrence to thecommunity as being the principle factor in this sentencing and alsodenunciation.

7 The Supreme Court of Canada most recently in 2015 in the case of R.c. Lacasse, [2015] S.C.J. No. 64 (S.C.C.) sent a strong message to thetrial court in relation to these very types of offences. They held at para-graph 73 in relation to considering denunciation and deterrence that“while it is true that the objectives of deterrence and denunciation applyin most cases, they are particularly relevant to offences that might becommitted by ordinary law abiding people. It is such people, more thanchronic offenders who would be sensitive to harsh sentences. Impaireddriving offences are an obvious example of this type of offence as thiscourt quoted in R. v. Proulx, [2000] 1 S.C.R. 61 (S.C.C.)

8 They also refer to R. v. McVeigh [1985 CarswellOnt 1389 (Ont.C.A.)], a 1985 case of the Ontario Court of Appeal. They go on to say inparagraph 74, referring to the Court of Appeal decision of the QuebecCourt of Appeal: “A loss of human life caused by operation of a vehiclewhile impaired is a consequence that cannot be remedied, which is whyit is important for the courts to convey a message of denunciation tothose who put themselves in potentially dangerous situations...”

9 And importantly, it goes on to say: “...even if the offender does nothave a criminal record and did not wish to cause the tragic accident”.

10 One of the overriding difficulties in these types of cases is that theyare often committed by good people and they often kill equally goodpeople in the community.


11 It is not commonly a situation where we have an offender before thecourt that has an extensive history of impaired driving; that is not thenorm in these types of cases.

12 In the Ramage case, the Ontario Court of Appeal commented as fol-lows: “In McVeigh the trial judge properly identified general deterrenceas a predominant concern”. The McVeigh Judgment was a landmark de-cision in its time in 1985 and that Judgment is now many, many yearsold. But the message then was that drinking and driving related offencesare serious crimes and must be treated as such by the courts. In the wordsof MacKinnon, Associate Chief Justice of the Court at the time, “Everydrinking driver is a potential killer”.

13 There has been an evolvement of the community’s tolerance for im-paired driving offences. Many, many years ago, driving while impairedwas tolerated. It was certainly reflected in much reduced sentences. Iagree with Mr. Layefsky’s submissions and Mr. Smith’s submissions thatthe sentences are now increasing for this type of offence. Why is that?Because the message is not getting through to the community that we, asa community which the sentence and this court represent, will not toler-ate this type of offence and if committed, it will be treated harshly.

14 The Criminal Code provides some parameters for the court to con-sider in the principles of sentencing. Section 718 sets out the purpose andprinciples of sentencing. While I appreciate that Counsel are well awareof that section and the terms, perhaps the families present are not.

15 “The fundamental purpose...” as section 718 states, “...is to protectsociety and to contribute along with crime prevention initiatives, to re-spect for the law and the maintenance of a just, peaceful and safe societyby imposing just sanctions that have one or more of the followingobjectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the commu-nity; and,


(f) to promote a sense of responsibility in offenders an acknowledge-ment of the harm done to victims and to the community.”

16 The section goes on to require in 718.1: “must be proportionate to thegravity of the offence and the degree of responsibility of the offender”.

17 You have heard a lot today about what was referred to by Counsel, asmitigating and aggravating circumstances. That is because the CriminalCode again, in the same section, 718.2 requires that “A court that im-poses a sentence shall also take into consideration the following princi-ples...” And it outlines a number of detailed principles in that section;some of which are not appropriate to this case, but generally, mandatesthat I consider mitigating circumstances or aggravating circumstances re-lating to the offence or the offender.

18 The section says, “A sentence should be increased or reduced to ac-count for any relevant aggravating or mitigating circumstances relatingto the offence or the offender.” It then goes on to outline more detail.

19 The position of the Defence before me today is that an appropriatesentence in all the circumstances of the offence and the offender is threeto four years incarceration plus three to four years of a driving prohibi-tion and other ancillary orders which are not contested.

20 The Crown’s position is that the sentence should be four to six yearsincarceration together with a 10 to 15 year driving prohibition.

21 In this case, I have a number of exhibits filed which I have carefullyconsidered.

22 I have considered the pre-sentence report prepared in this matter byMr. Howard Collins of the Kingston Probation and Parole Office. I findthat the pre-sentence report in relation to Mr. Scott is a positive one andcontains very little negative circumstances for the court to consider.

23 I have considered Mr. Scott’s driving record which, for the benefit ofall present, consists of a speeding charge in 2012 (70 kilometres per hourin a 50 kilometre per hour zone); 2011, a second speeding charge (60kilometres per hour in a 50 kilometre per hour zone); and lastly, an im-proper drive on divided highway lane change. I would describe that driv-ing record as relatively insignificant but it does indicate a pattern of driv-ing too fast.

24 The Victim Impact Statements that were both read in by family pre-sent and by the Crown on behalf of others who chose not to read theirstatements, I have carefully considered. It is important for all concerned -families of both Mr. Scott and Mr. Way, that the court provide an oppor-


tunity for the true impact of this offence to be before the court and forMr. Scott to hear.

25 The victims in this case have been severely impacted. I cannot imag-ine the loss of a loved one in these circumstances would ever be anythingbut a significant impact.

26 Shawn Way was a good person. He had a loving family, he had chil-dren, he had a very active life and he had solid friends. He didn’t doanything wrong and yet it cost him his life.

27 In one of the statements filed, one of the deponents asked the ques-tion, “Why do bad things happen to good people?” I wish I had the an-swer but I don’t. One possible answer is that because of split seconddecisions that people make: one to drink and then while their ability andjudgment is impaired and the ability to make logical decisions is im-paired and diminished, they decided against all odds particularly in thiscase, with Mr. Scott’s history of being a firefighter - a first responder anda Correctional Officer - against all odds, he drives. It’s really inexplica-ble and I’m sure troubles everyone greatly.

28 There are no issues here of pre-trial custody time as a factor in reduc-ing sentence. There are also no issues here of a house arrest provision orstringent bail conditions in order to reduce what would otherwise be anappropriate sentence.

29 I will now review the aggravating and mitigating factors.30 I find the following to be aggravating factors: The impact on Shawn

Way’s family has been staggering. They have come here today, filedvery detailed and read very detailed Victim Impact Statements and arestill at a loss in trying to find closure as to the reason for his death. It hasbeen well over a year and they are still traumatized by the circumstancesof this offence.

31 In addition, the theme that runs throughout the Victim Impact State-ments is one of anger and rage; not so much for the accident and thefatality itself but because of Mr. Scott’s actions at the scene in not ap-pearing to care at all about Mr. Way and his circumstances or condition.Rather, Mr. Scott focussed on himself throwing away his identificationcards, taking license plates off his car and doing things that are so con-trary to basic human decency that one really wonders what is going on.There is a theme in the Victim Impact Statements that if there had beenimmediate compassion and focus on what had happened and with hisexperience; he would have shown compassion for Shawn Way. It may


have made a difference. But, that is a factor that I do consider that thatdid not happen and that’s very hard to get by.

32 There have been many examples in my experience on the benchwhere people driving by, coming upon an accident, will hold the hand ofa victim, will stay there and console them not knowing whether they’redead or alive, out of basic human decency. I think that lack of doing thatfor Shawn Way at the time of this accident is one of the very difficulthurdles the family has in getting over what happened to their loved one.

33 I have considered as an aggravating factor the amount of alcohol con-sumed and the degree of impairment. While the readings are a range of109 to 169 millilitres of alcohol per 100 millilitres of blood, the evidenceof the witnesses at the scene and the officers was that he was clearlydrunk at the scene.

34 I consider as an aggravating factor that this collision resulted in afatality.

35 Again; I consider his driving record for speeding that shows a propen-sity to drive perhaps faster but I don’t consider that a material considera-tion in the sentence because it is relatively minor in nature and the speedsthat were being driven are not - let’s say - wildly excessive.

36 He was speeding at the time of this accident which I have consideredas an aggravating factor and he was going, as provided for in the Acci-dent Reconstruction Report, 100 kilometres per hour in an 80 kilometreper hour zone on a curve.

37 I have considered as well that a friend had offered him a place to stay- a place to sleep on his couch. It would only have taken a few hours forhim to rest before he would consider driving and because of what Mr.Scott did for a living, that friend never thought that he would actually puthis vehicle in motion and drive and was generally shocked by the result.

38 I have considered that Mr. Scott made the choice to drink which isnot a crime but, he made the choice to drive while impaired and he putthe community at risk and that materialized in this tragic fatality.

39 The mitigating factors I have considered are that Mr. Scott is a firsttime offender before the court. He has no previous criminal record.

40 He is relatively young at 34 years of age.41 Prior to this offence, he led what Mr. Smith, his Counsel, referred to

and I agree a pro-social life-style. That means he was fully integratedinto the community, he was self-supporting and he led an exemplary life.He was on the Volunteer Firefighter Squad for Loyalist Township for the


previous four years and he had gone through high school, CorrectionalCollege which is not an easy college to pass and graduate from - it’s avery difficult course. He graduated from there successfully and he was aCorrectional Officer at Millhaven Institution; also not an easy institutionto work at - a maximum security institution.

42 I have considered his plea of guilty. Even after a very brief prelimi-nary hearing, I don’t find that in any way disparages the weight I wouldgive to a plea of guilty. It has saved many witnesses and much evidencewhich could be extremely graphic from being called and put into publicview. He has spared both the victim’s family and his own family fromthat rather horrendous exercise of a trial.

43 I have considered his very positive pre-sentence report. It’s the onlyway to describe it. It has nothing negative to say about Mr. Scott.

44 I have considered Mr. Scott’s Metis Aboriginal background. He doesnot wish to rely on that as a reason for the court to consider the length ofhis sentence but he does honour his traditions of his Aboriginal Peoplesin his hunting and fishing activities and in some smudging and spiritualactivities which I acknowledge as being important.

45 He has lost his employment. I agree with Mr. Layefsky that that issuehas to be balanced against his position in the community as a VolunteerFirefighter and a Correctional Officer but in Mr. Scott’s circumstance, Iconsider that a significant punishment in and of itself. Mr. Scott workedvery hard to obtain his position as a Correctional Officer and it is goneforever. He is not like many individuals who could do a term in peniten-tiary and then come out and return to that vocation. He is prohibited fromengaging in that occupation because he will have a criminal record andthat criminal record will affect his employment in the future. And again;I say, he is very young. He is 34. He has many years that he will have tosupport himself.

46 I have considered that he was a law abiding citizen and had donenothing to be before the courts or in trouble with the law prior to thisincident.

47 In addition, Mr. Scott’s personal circumstances I am required to con-sider. Again; his age at 34. He is in a positive relationship with his girl-friend who has three children. He has worked in the community and haswaited his time to come to court and has been employed while waiting tocome to court which is often extremely difficult.


48 I have carefully considered all of the facts of this case, the submis-sions of Counsel and their respective positions, the relevant case law, allof the Victim Impact Statements and all of the circumstances of the of-fender, Mr. Scott.

49 I would ask you to please stand at this point Mr. Scott.50 Bringing my best judgment to bear; I find in all the circumstances of

this case, that the appropriate sentence on the charge of impaired drivingcausing death of Shawn Way is five years in penitentiary.

51 In addition, I sentence you to a five year driving prohibition. Thisdriving prohibition is a lot less than as requested by the Crown and cer-tainly a bit more than requested by the Defence because you have, what Iconsider, a clean driving record for all intensive purposes, the combina-tion of the loss of your employment and the prison term that you havereceived, in my view mitigates against a longer driving prohibition. I amsatisfied that you will appreciate when you are able to drive, that it is aprivilege to have a driver’s license; it’s not a right. And, I am satisfiedthat in your rehabilitation, the ability to drive will be an important con-sideration in the future and I am not prepared to make a driving prohibi-tion in excess of five years.

52 In relation to the ancillary orders; I order a weapon’s prohibitionunder section 109(2) (a) (ii) for 10 years as required. I also order a sam-ple of your D.N.A. be taken pursuant to a secondary designated offence.

53 I should note that the driving prohibition is under section 259(2) (a.1)of the Criminal Code of Canada.

54 Now, before I conclude and sign off on the Indictment; Mr. Layefsky,have I left anything out?

55 MR. LAYEFSKY: No. The section makes it clear that the drivingprohibition begins at the completion of the period of incarceration butI’m just wondering if that could be endorsed on the...

56 THE COURT: I can put that. To begin upon his release from custody.57 MR. LAYEFSKY: Upon release; yes.58 THE COURT: Is that fine?59 MR. LAYEFSKY: Yes.60 THE COURT: And Mr. Smith; do you have any submissions? Have I

missed anything?61 MR. SMITH: Not that I can think of. Thank you, Your Honour.


62 MR. LAYEFSKY: And then one other point I just wanted to - and Idon’t think it’s an issue in this case but if I could find my Victim Wit-ness...I don’t think a 743 order for non-communication is necessary.

63 THE COURT: I don’t think that’s necessary.64 MR. LAYEFSKY: Alright.65 THE COURT: Just have a seat. I’ll endorse the Indictment please.66 I will just review the actual endorsement on the Indictment. Count 2

and 3 have been previously marked withdrawn. The sentence on Count 1is five years in custody.

67 Driving prohibition pursuant to section 259(2) (a.1) for five years tobegin upon his release from custody.

68 Section 109(2) (a) (ii) which is a weapon’s prohibition for 10 years.69 A D.N.A. sample ordered to be taken as a secondary designated of-

fence. I have signed it. I believe that completes the matter Counsel.70 MR. SMITH: I think it does; thank you very much Your Honour.

Accused sentenced to five years’ imprisonment.


[Indexed as: R. v. Lambert]

HER MAJESTY THE QUEEN v. BRADLEY LAMBERT

Newfoundland and Labrador Supreme Court (Trial Division)

Docket: 201301G6196

2016 NLTD(G) 209

Carl R. Thompson J.

Heard: December 7-11, 14, 15, 2015; May 24-26, 2016; June23, 2016; October 12, 2016

Judgment: October 14, 2016

Written reasons: December 22, 2016

Evidence –––– Confessions — Voluntariness — Capacity to make state-ment — Mental deficiency –––– Accused was charged with impaired drivingcausing bodily harm and driving with blood alcohol level over legal limit —When uniformed officer investigating accident entered ambulance with accused,introduced himself, and asked accused how he was doing accused said “I amdrinking and driving. Give me the ticket and let me go boy” — Accused madesimilar inculpatory statements both when officer returned to ambulance and ac-cused was given his rights and caution, and in emergency room after blood de-mand was made — Accused testified that his memory went blank after hestopped at treed area and drank beer and that he did not remember any of state-ments attributed to him — Accused’s girlfriend testified she visited accused inhospital and testified that accused was incoherent and would not even respond toher — Doctor, who was called as expert for defence, asserted accused displayedclear evidence of concussion — Accused applied for exclusion of evidencebased on violations of his rights under ss. 8 and 10(b) of Canadian Charter ofRights and Freedoms — Application granted at voir dire — Admission of ac-cused’s statements and sample of blood following denied — There was real con-cern that accused had benefit of operating mind at times of his utterances anddemand for blood sample — Medical evidence and surrounding circumstancesof collision and accused’s actions combined to establish cognitive diminishmentcompromising Crown’s ability to establish operating mind of accused — Mini-mum cognitive capacity contemplated in guiding jurisprudence was not madeout in this case and there was reasonable doubt that accused had cognitive abil-ity to comprehend what was said to him and to process: rights of which he wasadvised; true jeopardy that he faced at time; and ability to consider, understandor process both in context.

Criminal law –––– Charter of Rights and Freedoms — Arrest or detention[s. 10] — Right to counsel [s. 10(b)] — Right to retain and instruct counsel

R. v. Lambert 299

without delay –––– Accused was charged with impaired driving causing bodilyharm and driving with blood alcohol level over legal limit — When uniformedofficer investigating accident entered ambulance with accused, introduced him-self, and asked accused how he was doing accused said “I am drinking and driv-ing. Give me the ticket and let me go boy” — Accused made similar inculpatorystatements both when officer returned to ambulance and accused was given hisrights and caution, and in emergency room after blood demand was made —Accused applied for exclusion of evidence based on violations of his rightsunder s. 10(b) of Canadian Charter of Rights and Freedoms (Charter) — Appli-cation granted — In ambulance, there was no ability to exercise right to counseland officer re-instructed accused at emergency room while person of accusedwas immobile at relevant times — But for mobility of bed or provision of phoneat his place of rest in emergency room, accused could not consult with counseland court had no indication that steps were taken to provide that facility and nosatisfactory explanation for not doing so was given — Accused had properlymade out breach of his s. 10(b) Charter rights — Equally, meaningful ability toexercise right to counsel as component of valid demand was absent.

Criminal law –––– Charter of Rights and Freedoms — Charter remedies [s.24] — Exclusion of evidence –––– Accused was charged with impaired drivingcausing bodily harm and driving with blood alcohol level over legal limit —When uniformed officer investigating accident entered ambulance with accused,introduced himself, and asked accused how he was doing accused said “I amdrinking and driving. Give me the ticket and let me go boy” — Accused madesimilar inculpatory statements both when officer returned to ambulance and ac-cused was given his rights and caution, and in emergency room after blood de-mand was made — Accused testified that his memory went blank after hestopped at treed area and drank beer and that he did not remember any of state-ments attributed to him — Accused’s girlfriend testified she visited accused inhospital and testified that accused was incoherent and would not even respond toher — Doctor, who was called as expert for defence, asserted accused displayedclear evidence of concussion — Accused applied for exclusion of evidencebased on violations of his rights under ss. 8 and 10(b) of Canadian Charter ofRights and Freedoms — Application granted at voir dire — Admission of ac-cused’s statements and sample of blood following denied — There was real con-cern that accused had benefit of operating mind at times of his utterances anddemand for blood sample — Medical evidence and surrounding circumstancesof collision and accused’s actions combined to establish cognitive diminishmentcompromising Crown’s ability to establish operating mind of accused — Mini-mum cognitive capacity contemplated in guiding jurisprudence was not madeout in this case and there was reasonable doubt that accused had cognitive abil-ity to comprehend what was said to him and to process: rights of which he wasadvised; true jeopardy that he faced at time; and ability to consider, understandor process both in context.


Criminal law –––– Offences — Impaired driving causing bodily harm —General principles.

Criminal law –––– Offences — Driving/care and control with excessive alco-hol — Charging.

Cases considered by Carl R. Thompson J.:

R. v. Grant (2009), 2009 SCC 32, 2009 CarswellOnt 4104, 2009 CarswellOnt4105, 66 C.R. (6th) 1, [2009] S.C.J. No. 32, [2009] A.C.S. No. 32, 245C.C.C. (3d) 1, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 391 N.R. 1, 253O.A.C. 124, [2009] 2 S.C.R. 353, 193 C.R.R. (2d) 1, 97 O.R. (3d) 318(note), EYB 2009-161617 (S.C.C.) — followed

R. v. Oickle (2000), 2000 SCC 38, 2000 CarswellNS 257, 2000 CarswellNS 258,[2000] S.C.J. No. 38, 36 C.R. (5th) 129, 147 C.C.C. (3d) 321, 190 D.L.R.(4th) 257, 259 N.R. 227, [2000] 2 S.C.R. 3, 187 N.S.R. (2d) 201, 585 A.P.R.201, REJB 2000-20234 (S.C.C.) — followed

R. v. Venditti (1992), 37 M.V.R. (2d) 25, 1992 CarswellOnt 15, [1992] O.J. No.784 (Ont. Prov. Ct.) — considered

R. v. Whittle (1994), 32 C.R. (4th) 1, 170 N.R. 16, 73 O.A.C. 201, 92 C.C.C.(3d) 11, [1994] 2 S.C.R. 914, 23 C.R.R. (2d) 6, 116 D.L.R. (4th) 416, 1994CarswellOnt 91, 1994 CarswellOnt 1163, [1994] S.C.J. No. 69, EYB 1994-67663 (S.C.C.) — considered



s. 8 — considereds. 10(b) — considereds. 24(2) — considered

Criminal Code, R.S.C. 1985, c. C-46s. 255(2) — referred tos. 255(2.1) [en. 2008, c. 6, s. 21(3)] — referred to

APPLICATION by accused for exclusion of evidence based on violations of hisrights under ss. 8 and 10(b) of Canadian Charter of Rights and Freedoms.

Elizabeth J. Ivany, for CrownMark J. Gruchy, for Accused

R. v. Lambert Carl R. Thompson J. 301

Carl R. Thompson J.:

INTRODUCTION1 The accused is charge that:

Count 1

On or about the 17th day of September, A.D. 2011, at or near St.John’s, in the Province of Newfoundland and Labrador, did unlaw-fully operate or have the care or control of a motor vehicle while hisability to operate the motor vehicle was impaired by alcohol or adrug and thereby caused bodily harm to David Fitzpatrick contrary toSection 255(2) of the Criminal Code;

Count 2

On or about the 17th day of September, A.D., 2011, at or near St.John’s, in the Province of Newfoundland and Labrador, did unlaw-fully operator or have the care or control of a motor vehicle havingconsumed alcohol in such a quantity that the concentration thereof inhis blood exceeded 80 milligrams of alcohol in 100 milliletres ofblood and caused an accident resulting in bodily harm to David Fitz-patrick, contrary to Section 255(2.1) of the Criminal Code.

2 The accused has initially applied to have utterances made by him topolice and samples of his blood taken from him, excluded from evidenceon the basis of breaches under ss. 8 and 10(b) of the Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1982, being Sched-ule B to the Canada Act 1982 (U.K.), 1982, c. 11.

3 Subsequently, the Crown applied to have the evidence of the utter-ances and the blood sample admitted into evidence. The Crown acceptsthat it is its obligation to establish the admissibility in the first instance.

4 The Defence has taken the position that the utterances or statementsof the accused are not voluntary and are so inadmissible. The burden ison the Crown to establish voluntariness beyond a reasonable doubt.

5 The Defence as well takes the position that the accused did not waivehis right to counsel in these circumstances and that the Crown bears theburden of establishing such waiver.

6 The Defence takes the position as well that the demand for a bloodsample was absent voluntariness and waiver.

7 Over these three issues and impacting each, the Defence claims thatthe medical condition of the accused discloses the absence of an operat-ing mind which the Crown must address in establishing voluntariness forthe purposes of all admissibility issues.


EVIDENCE

(i) Sergeant Jeff Thistle8 Sergeant Jeff Thistle arrived at the scene on the evening in question at

11:50 p.m. He saw a single vehicle on its roof; one person ejected to theadjacent ditch some 20 feet away from the vehicle and another lyingthrough the passenger window in a prone position.

9 At 11:55 p.m. he spoke with Glynnis Collins, the resident next doorto the scene who said she heard noise from the accident at 11:40 p.m. andcame out and saw the accident scene.

10 At 12:06 a.m. Sgt. Thistle spoke with the accused’s father who ad-vised that his son was the driver and it was his son’s uncle who ownedthe car.

11 At 12:13 a.m. Sgt. Thistle entered the ambulance containing the ac-cused. He was then wearing a police uniform. He introduced himself andasked the accused how he was doing. The accused said “I am drinkingand driving. Give me the ticket and let me go boy”.

12 Sgt. Thistle testified that there was a strong smell of alcohol in theambulance, that the accused was combative and argumentative, hisspeech was slurred and his eyes glossy and watery. He was loud, agi-tated, aggressive verbally, upset and cursing.

13 Sgt. Thistle then left the ambulance and went to the ambulance con-taining David Fitzpatrick. He confirmed the accused was the operator ofthe vehicle. His injuries seemed to Sgt. Thistle to be more severe.

14 At 12:33 a.m. Sgt. Thistle went back to the ambulance containing theaccused. He got in the ambulance and advised the accused of his rightsand gave him the police caution. He then told the accused that he be-lieved that he was operating the motor vehicle when under the influenceof alcohol at 11:40 p.m. He testified that he asked the accused if he un-derstood and he said, yes, he did understand, and that he did not need alawyer. He stated “I was drinking and driving; I told you, give me theticket”. Sgt. Thistle testified that he believed that the accused understoodwhat he was saying. Sgt. Thistle testified that he did not make a demandfor a sample of his breath at this time because he did not then know howlong the accused might have to remain in hospital and a breath demandwould not then be feasible, and he would have to make the demand forthe more intrusive means of obtaining a blood sample. He testified thathe did not recall having to raise his voice in speaking to the accused oryell at him. The accused was verbally negative toward him which, in his


experience, is not uncommon. He testified that it was possible he mayhave raised his voice. He testified that with the service vehicle and peo-ple present, there was noise. Sgt. Thistle testified that he instructed Con-stable Louis Rumbolt to enter and remain in the ambulance, not to ques-tion the accused and to take notes of anything the accused said.

15 At 1:03 a.m. at the Health Sciences Centre Sgt. Thistle spoke to theaccused again in Unit 1 of the emergency room. He again gave the ac-cused his rights and caution. He testified the accused understood both.He said he did not need a lawyer. Sgt. Thistle told the accused he couldbe charged with impaired driving causing bodily harm. He then made theblood demand. He testified the accused stated “If it’s needed, you knowI’m impaired”.

16 Sgt. Thistle then had the taking of the samples completed by NurseMelissa Hillier under the direction of Dr. Rose Mengual.

(ii) Constable Rumbolt17 Constable Rumbolt, a cadet with the Royal Newfoundland Constabu-

lary, then one week on the job, saw the accused in the ditch yelling andscreaming; another male with his foot inside the passenger side of thevehicle.

18 Cst. Rumbolt testified he was outside the ambulance door and heardSgt. Thistle give the accused his rights and caution, and that Sgt. Thistlewas raising his voice due to the accused’s yelling and screaming. Aswell, there were two fire trucks there, two ambulances and many peoplemaking a lot of noise. He confirmed the accused’s utterances to Consta-ble Thistle at the time of the caution.

19 Cst. Rumbolt testified that in the ambulance the accused was askinghim what had happened. Cst. Rumbolt told him when he got to the scenehe was in the ditch and the accused responded that he was driving toofast before he was in the ditch. He said he did not know who was in thecar with him. He yelled “I remember nothing”.

20 Cst. Rumbolt testified that the accused appeared to be intoxicated.His speech was slurred. His eyes were red and bloodshot. There was astrong smell of alcohol on his breath which he smelled. He noted thesefeatures once he had gotten into the ambulance. The accused’s wordswere not being properly articulated.

21 Cst. Rumbolt testified that in the hospital the accused was mad withthe nurses and doctors. He was cursing and swearing. When he was


asked questions by them he would reply in vulgar terms. He was actingout of pain. He was groaning, and he was saying that his body hurt andhe was in a lot of pain.

(iii) Brad Lambert22 Bradley Lambert testified in the voir dire as to his recollection of the

event.23 He testified that he took his uncle’s car; his Uncle Brad’s. He and

David Fitzpatrick drove up to the Pipeline to Power’s Road, pulled into atreed area, parked and they drank beer from a dozen that David had takenwith him. Brad Lambert testified he drank two beers. He thinks hisbrother Justine pulled up.

24 He testified that it kind of goes blank from there. He was not doingdrugs at the time. He does not recall what they discussed at the Pipeline.They were just chatting. He does not recall when they left the Pipeline.

25 He testified that his next recollection was the race track. He does notknow how they got there. He remembers a friend, Chad Furlong, there atthe race track.

26 The next thing he remembers is waking up in hospital. He then onlyremembers David Fitzpatrick bawling out “what happened?” He does notremember if he answered him or anything that he, Braid, said. He doesnot remember anything else in the hospital until the next day. On that dayhe remembers he couldn’t move. He testified that after the first day, theytook it [the spinal restraint] and he was up and left the hospital three dayslater.

27 He does not recall the collision, the ambulance, an interaction withpolice or any interaction with persons providing care at the hospital. Hisfirst contact with police was when Officer Thistle delivered papers tohim at his house.

(iv) Cassandra Hearn28 Cassandra Hearn testified as to her visiting Brad Lambert at the hos-

pital. She and Brad were then in a relationship. She stood at the end ofthe curtain separating Brad and David Fitzpatrick in the emergencyroom. She testified both were in a lot of pain. Police, nurses, both ofBrad’s parents and both of David’s parents were also present.

29 She testified that Brad would not answer her. He was shouting at thenurses that he was in pain and was going to be sick.


30 She testified that David seemed in more pain. He was shouting outmore. He seemed cut more than Brad.

31 She testified that David Fitzpatrick asked Brad who was driving.Then Brad called out to want the catheter removed, and he wanted to goto the bathroom.

32 She testified that she was there 10 to 15 minutes. She had never seenBrad like that before. He was incoherent and did not know where he wasor what was going on. On cross-examination she testified that Brad wastrying to get up off the board and she told him not to. He seemed ex-tremely intoxicated or just off. In the past when he was intoxicated hewould respond to her. Now he didn’t.

33 On cross-examination she testified that Brad and David were lettingeach other know they were next to each other in the emergency room.They could not see each other but she could see them both. She testifiedthat David asked what happened and Brad tried to answer. One ofDavid’s parents answered, she thought his mother, that they had been inan accident. Brad said “I’m alright; I’m alright”. David shouted out“Who was driving?” Brad shouted a couple of times to David “You’ll bealright, buddy”.

(v) Dr. Alan Goodridge34 Dr. Alan Goodridge is a neurologist. He testified to give opinion as to

the concussion generally and specifically as to whether the accused hadsuffered a concussion. He termed “concussion” as mild traumatic braininjury.

35 Dr. Goodridge viewed the ambulance notes and the triage nursing andmedical notes at the Health Sciences Centre, including notes from a sub-sequent visit by the accused a couple of days later. While he did notreview the reports he was aware of the involvement of alcohol and co-caine consumption by the accused at the time of hospitalization.

36 He also interviewed the accused. He determined from the accused andaccepted that the accused had amnesia from being in the Goulds racetrack prior to the collision to the early morning after admission to thehospital.

37 Dr. Goodridge explained that mild traumatic brain injury can occur asa result of a thrust of the brain so that it is jarred in its normally sur-rounding cerebral spinal fluid and strikes the skull at one part and thencan strike the skull again at another part. It does not show on imaging.


There is disruption and cervical changes and for some hours, brain func-tion is impaired.

38 Dr. Goodridge explained that this functional impairment can be dif-fuse. In some cases there can be a complete loss of consciousness. Thisoccurs in 20 percent of the cases only. In most cases there is altered con-sciousness and amnesia with common symptoms of headache, slownessof thought, disorganized thinking, hyper excitability and irritability. Hetestified that the brain may be affected and a person may not make agood judgment. This is because a person cannot assess information. Onemay have fragments of information and misinterpret it. The result is dis-organized thinking or a lack of logical thinking from one step into an-other. Comprehension of information is not fully understood and ana-lyzed as the brain should. It is reversible in most cases over 24 hours. Aperson concussed can be confused and appear to be thinking clearly. Ifthe trauma is frontal a person may be more emotional in symptoms dis-playing irritability, agitation, hyper excitability and not being able to staystill.

39 In Dr. Goodridge’s opinion, this accused displayed clear evidence ofa concussion. He was aware of the involvement of alcohol and cocaine incoming to this conclusion. He reached this conclusion substantially forthe reasons that:

i) The accused was ejected from the vehicle some 30 feet resultingin a significant impact to the body.

ii) There was a laceration on his forehead.

iii) The ambulance attendants noted he was thrashing about and hewas hard to communicate with. He was trying to pull out the intra-venous lead.

iv) He stated to police he was drinking and to give him a ticket and lethim go.

v) At the emergency room:

a) At 00:50 he was noted be confused and combative;

b) at 03:20 he was noted to be orientated and alert but did notknow where he was;

c) at 04:30 and 06:30 he vomited, and

d) at 07:00 he was non-compliant with spinal precautionrestraint.


(vi) He was noted on the Glasgow Coma Scale to be 14 of a normal 15for the reason that he was not alert and was confused.

(vii) He failed to respond to one of the basic of three inquiries: who areyou?; where are you?; and what date is it?

40 Dr. Goodridge noted as well that he understood from the accused thathe had headaches for a week after, which is a classic symptom, and hedid not sleep well during that period.

41 Dr. Goodridge was of the opinion that the accused was greatly im-paired and this was a significant concussion. He did not exercise goodjudgment in not caring for his own safety in removing the intravenous inthe ambulance and in not complying with the spinal restraint which couldhave resulted in his being a quadriplegic. He did not exercise good judg-ment for himself in responding to the police officer in the ambulance.

42 On cross examination, Dr. Goodridge confirmed his awareness of al-cohol and cocaine involvement and the accused’s Attention Deficit Dis-order. These, he agreed, may have contributed to the concussionsymptoms.

43 Dr. Goodridge did agree on cross-examination that the presence of apolice officer in uniform speaking to the accused in a loud voice couldraise his level of interaction, though it was still poor judgment. He maynot be receiving all of the information he may want to consider. He hasfragments of information; he has recognized the police officer, and hehas recognized he was drinking alcohol. There is a heightened aware-ness. Dr. Goodridge explained that the issue here is the level of his cog-nitive ability. In his view there is some cognition and contact with real-ity; he has to balance that with his lack of judgment at the hospital.

44 Dr. Goodridge confirmed on cross-examination that during this timeof various levels of confusion there are higher and lower periods of alert-ness but not fully resolved until after 7:00 a.m. at the hospital. Therewere periods within that prior time when he could have made somedecisions.

45 On re-direct examination he confirmed that you are making decisionsthat are not fully reasoned at you would here in a courtroom.


CASE LAW46 In R. v. Whittle, [1994] 2 S.C.R. 914 (S.C.C.), Sopinka, J. stated at

paragraphs 36 to 38, 46 and 50 to 52, as follows: 36 In Ward v. R., [1979] 2 S.C.R. 30, this court dealt with a confes-sion made in a police cruiser by a person who as a result of an auto-mobile accident had just regained consciousness and was in a state ofshock. Spence J., for a unanimous court, held that the trial judge wasright in excluding the confession notwithstanding that it was not ob-tained as a result of any police action. Indeed, the police officer wasunaware of the condition of the accused. Spence J. stated that theinquiry into voluntariness was a two-stage process. At p. 40 hestated: In my view, Manning J. engaged in a consideration of boththe mental and physical condition of the accused, firstly, to determinewhether a person in his condition would be subject to hope of ad-vancement or fear of prejudice in making the statements, when per-haps a normal person would not, and, secondly, to determinewhether, due to the mental and physical condition, the words couldreally be found to be the utterances of an operating mind.

37 Apart from the facts of the case and a statement by Spence J. thatthere was evidence to support a finding that the accused did not knowwhat he was saying, there is no elaboration as to the degree of cogni-tive capacity required to satisfy the operating mind test.

38 In Horvath v. R., [1979] 2 S.C.R. 376, a statement was taken fromthe accused after intense questioning while he was in a hypnoticstate. A majority of the court agreed with the trial judge that thestatement should be excluded. Spence and Estey JJ. based their con-clusion not on the hypnotic state but on the trial judge’s conclusionthat the accused was in a state of complete emotional disintegration.Beetz J., writing for himself and Pratte J., concluded that a personwho has made a statement in a hypnotic state induced by “truth se-rum” narcotics, administered by the authorities, cannot be consideredto have made it voluntarily. In the course of the reasons, after con-cluding that “he was not either in a state of full consciousness andawareness ...” and concluding that the involuntariness rule can be ex-tended to causes other than promises, threats, hope or fear, he added,at p. 425:

Furthermore, voluntariness implies an awareness of whatis at stake in making a statement to a person in authority.

In my opinion in the circumstances this does not imply a higher de-gree of awareness than knowledge of what the accused is saying andthat he is saying it to police officers who can use it to his detriment.


. . .

46 The operating mind test, therefore, requires that the accused pos-sess a limited degree of cognitive ability to understand what he or sheis saying and to comprehend that the evidence may be used in pro-ceedings against the accused. Indeed it would be hard to imaginewhat an operating mind is if it does not possess this limited amountof cognitive ability. In determining the requisite capacity to make anactive choice, the relevant test is: Did the accused possess an operat-ing mind? It goes no further and no inquiry is necessary as towhether the accused is capable of making a good or wise choice orone that is in his or her interest.

. . .

50 The operating mind test, which is an aspect of the confessionsrule, includes a limited mental component which requires that the ac-cused have sufficient cognitive capacity to understand what he or sheis saying and what is said. This includes the ability to understand acaution that the evidence can be used against the accused.

51 The same standard applies with respect to the right to silence indetermining whether the accused has the mental capacity to make anactive choice.

52 In exercising the right to counsel or waiving the right, the accusedmust possess the limited cognitive capacity that is required for fitnessto stand trial. The accused must be capable of communicating withcounsel to instruct counsel, and understand the function of counseland that he or she can dispense with counsel even if this is not in theaccused’s best interests. It is not necessary that the accused possessanalytical ability. The level of cognitive ability is the same as thatrequired with respect to the confession rule and the right to silence.The accused must have the mental capacity of an operating mind asoutlined above.

47 In R. v. Oickle, [2000] 2 S.C.R. 3 (S.C.C.) Iacobucci, J. stated atparagrphs 63 and 64, 68 and 69:

63 This Court recently addressed this aspect of the confessions rulein Whittle, supra, and I need not repeat that exercise here. Brieflystated, Sopinka J. explained that the operating mind requirement“does not imply a higher degree of awareness than knowledge ofwhat the accused is saying and that he is saying it to police officerswho can use it to his detriment” (p. 936). I agree, and would simplyadd that, like oppression, the operating mind doctrine should not beunderstood as a discrete inquiry completely divorced from the rest ofthe confessions rule. Indeed, in his reasons in Horvath, supra, at p.


408, Spence J. perceived the operating mind doctrine as but one ap-plication of the broader principle of voluntariness: statements areinadmissible if they are “not voluntary in the ordinary English senseof the word because they were induced by other circumstances suchas existed in the present case”.

64 Similarly, in concluding that the confessions rule cannot be lim-ited to the negative inquiry of whether there were any explicit threatsor promises, Beetz J. offered the following explanation of the rule, atpp. 424-25:

Furthermore, the principle which inspires the rule remainsa positive one; it is the principle of voluntariness. Theprinciple always governs and may justify an extension ofthe rule to situations where involuntariness has beencaused otherwise than by promises, threats, hope or fear,if it is felt that other causes are as coercive as promises orthreats, hope or fear and serious enough to bring the prin-ciple into play.

As these passages make clear, the operating mind doctrine is just oneapplication of the general rule that involuntary confessions areinadmissible.

. . .

68 While the foregoing might suggest that the confessions rule in-volves a panoply of different considerations and tests, in reality thebasic idea is quite simple. First of all, because of the criminal justicesystem’s overriding concern not to convict the innocent, a confessionwill not be admissible if it is made under circumstances that raise areasonable doubt as to voluntariness. Both the traditional, narrowIbrahim rule and the oppression doctrine recognize this danger. If thepolice interrogators subject the suspect to utterly intolerable condi-tions, or if they offer inducements strong enough to produce an unre-liable confession, the trial judge should exclude it. Between thesetwo extremes, oppressive conditions and inducements can operate to-gether to exclude confessions. Trial judges must be alert to the entirecircumstances surrounding a confession in making this decision.

69 The doctrines of oppression and inducements are primarily con-cerned with reliability. However, as the operating mind doctrine andLamer J.’s concurrence in Rothman, supra, both demonstrate, theconfessions rule also extends to protect a broader conception of vol-untariness “that focuses on the protection of the accused’s rights andfairness in the criminal process”: J. Sopinka, S. N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339.Voluntariness is the touchstone of the confessions rule. Whether the


concern is threats or promises, the lack of an operating mind, or po-lice trickery that unfairly denies the accused’s right to silence, thisCourt’s jurisprudence has consistently protected the accused fromhaving involuntary confessions introduced into evidence. If a confes-sion is involuntary for any of these reasons, it is inadmissible.

CONSIDERATIONS AND CONCLUSIONS

A. OPERATING MIND

(i) General Circumstances of Injured Accused48 There is evidence of a significant vehicle impact at a likely high rate

of speed into a stationary ditch culvert and the elevation of the vehiclefrom ground surface and its coming to rest on its roof. The accused wasfound in a ditch some 30 feet from where the vehicle was found at rest.The accused suffered a fractured clavicle and loss of memory. His headappeared to have been struck. His actions in the ambulance engaged out-bursts, thrashing about and cursing. He was uncooperative in the ambu-lance and at the hospital emergency room.

(ii) Accused’s Cognitive Ability: Dr. Goodridge49 Dr. Goodridge opined on the state of cognition of the accused. The

timeframe of his opinion was that within which the utterances took place,the caution and rights given and the blood sample demanded.

50 Dr. Goodridge is of the opinion that at the relevant times this accusedis cognitively diminished. His thinking is disorganized and not logical.He is not able to assess information, comprehend it, and analyze it as onenormally does. Dr. Goodridge characterized the condition as a functionalimpairment resulting from the brain being jarred in its cerebral spinalfluid by striking the skull at one part and then at another part. There aredisruptive cervical changes. Brain function is impaired.

51 On cross-examination Dr. Goodridge did agree that the presence ofthe police officer and the officer raising his voice could raise the ac-cused’s level of interaction. Nevertheless, Dr. Goodridge notes the pres-ence of poor judgment. While there is heightened awareness of the policeofficer, Dr. Goodridge sees this as being receipt by the accused of frag-ments of information.

52 In the overall context of the accused’s condition, Dr. Goodridge re-verts to his concern of the level of the accused’s cognitive ability anddiminished capacity to properly place and process this interaction.


(iii) The Accused’s Words53 The words comprising the accused’s response themselves attract

consideration.54 There are two utterances by the accused to Sgt. Thistle and one re-

sponse to him to a demand for a blood sample. These are:

(a) Upon the officer’s entering the ambulance, the accused uttered “Iam drinking and driving. Give me the ticket and let me go boy”.No rights or caution preceded.

(b) Upon the officer re-entering the ambulance the accused uttered “Iwas drinking and driving I told you. Give me the ticket”. A cau-tion and right preceded.

(c) At the emergency room in response to the blood demand, “Youknows that I’m impaired. I told you.” He said he was going waytoo fast.

55 Injuries are present. Pain is present. In this context what can reasona-bly be concluded of these words? The first two indicate impracticalthought associations. These are:

(a) A ticket by the accused’s verbal admission will secure his release;common experience would not suggest this. As suspect of impair-ment does not receive such expedited treatment.

(b) It will secure his release to the extent of his leaving theambulance.

56 The verbal admission to the officer and the detention in the ambu-lance are not practically related. He is in the ambulance due to his injury.These words are not spoken in the normal course by a suspect of im-paired driving. They suggest a request for quick police treatment and cor-responding liberty. Insofar as pain is present, the impractical reasoningsuggests the police officer may be able to eradicate the circumstances ofthe accused in pain, in the ambulance.

57 None of the above can be taken as rational. What is clear from thewords spoken is that this accused is admitting his culpability as a quidpro quo. But what is the quid pro quo? To go home? To go to the hospi-tal? Circumstances leave him no quid pro quo to obtain.

58 Dr. Goodridge noted the accused’s statements as part of the evidencehe assessed as going, in part, to the medical conclusions he reached.

59 The third utterance appears less irrational. It is in response to the de-mand for the blood sample. The accused acknowledges his previous in-


culpatory statements of his impairment. However he conditions his con-sent with the words “if it’s needed”. If by this he meant “if it’s needed toconfirm impairment”, that would suggest a failure to process his thencurrent jeopardy. If he meant “needed for medical purposes” that wouldsuggest less than the requisite consent.

60 Based upon:

(a) the objective evidence of the collision;

(b) the injury to the accused;

(c) the irrational aspects of the utterances and response to the de-mand, as I have noted;

(d) the accused’s conduct attracting significant concerns for the neu-rological opinion; and

(e) Dr. Goodridge’s ultimate opinion that the information he revieweddisclosed to him clearly a concussion and cognitive impairment,

I have then a real concern that this accused had the benefit of an operat-ing mind at the times of his utterances and the demand for the bloodsample. It appears that with the concussion likely unresolved for a periodof 24 hours this accused’s awareness, perception, capacity to assess in-formation and operate logically is impaired. The medical evidence andthe surrounding circumstances of the collision and the accused’s actionsas I have just described them, combine to establish the cognitive dimin-ishment compromising the Crown’s ability to establish the operatingmind of the accused sufficient to support the voluntariness of the ac-cused’s utterances and his response to the demand for a sample of hisblood.

61 In my view, the minimum cognitive capacity contemplated in Whittleand Oickle is not made out in this case. I have a reasonable doubt thatthis accused had the cognitive ability to comprehend what was said tohim and to process:

(a) the right of which he is advised;

(b) the true jeopardy that he faced at the time; and

(c) the ability to consider, understand or process both in context.62 Further, in this context his responses as noted have to be viewed as

induced at least in part by his physical circumstances of pain andrestraint.


63 In my view, these responses are not voluntary as to allow their admis-sion into evidence. Their admission and the sample of blood followingare denied.

B. WAIVER OF RIGHT TO COUNSEL64 Given my conclusions on the operating mind aspect of voluntariness,

it would not be necessary to comment on the provision of the right andopportunity to consult with counsel. Given that counsel have given par-ticular attention to it and that it goes to the establishment by the Crownof the accused’s ability to exercise his right and grant the waiver as acomponent of a valid demand and the defence charter claim of failure toprovide the right, I will proceed to consider and comment on that issue asraised in the voir dire as well.

Validity of Demand

(i) Officer’s Subjective Belief65 I should first comment on the Defence position that the officer did not

have the subjective belief to support the demand. The Defence does nottake issue with the objective grounds.

66 On the question of Sgt. Thistle’s belief that the accused in fact drovethe vehicle, there is evidence that:

(a) Sgt. Thistle was given to understand from the accused’s father thatthe accused was driving and the car was owned by the accused’suncle before Sgt. Thistle entered the ambulance holding theaccused.

(b) Sgt. Thistle had left the ambulance, gone to the ambulance hold-ing the only other possible suspect and obtained confirmation thatthe accused had been the driver.

(c) Sgt. Thistle acted consistently thereafter with a view to the ac-cused being the driver through to the making of the demand, in-cluding having Constable Rumbolt stay in the ambulance with theaccused.

67 In my view the evidence confirms Sgt. Thistle’s subjective belief.

(ii) Waiver of Right to Counsel68 I have already commented on the words expressed by the accused on

the three occasions in question.


69 This circumstance is not unlike that of R. v. Venditti (1992), 37M.V.R. (2d) 25, 16 W.C.B. (2d) 24 (Ont. Prov. Ct.). There, the accusedrear-ended a taxi; her vehicle went upon on the sidewalk, over somenewspaper boxes and struck a pole. The rear of the car came to rest in-side a store window. The car was demolished. There were apparent lacer-ations to the accused’s nose and tongue but not otherwise to her head.She was strapped on a immobilizing backboard in the ambulance andwas so restrained in the hospital, plus at the hospital, she was strapped tothe bed as was her head.

70 When given her right to counsel in the ambulance she responded inpart that she was not driving and wanted to be out of there. Prior to tak-ing the breath sample at the hospital she was advised of her rights. Therewas no effort to provide the facility of a phone to the accused. MacDon-nell, Prov. J. concluded that the accused was not provided a reasonableopportunity to consult counsel.

71 In the circumstances before me, both in the ambulance and at theemergency room, this accused was not in a position where a meaningfulright to consult with counsel could be effected. This circumstance ismore understandable in the ambulance than at the emergency room. Inthe ambulance there was no ability to exercise the right to counsel. Nota-bly, the police officer re-instructed the accused at the emergency room.The person of the accused was immobile at the relevant times. But forthe mobility of a bed or the provision of a phone at his place of rest in theemergency room, the accused could not consult with counsel. I have noindication that steps were taken to provide that facility. Interestingly, itmay have been the case that in all of the circumstances of the accusedand his condition, that less than meaningful consultation might havetaken place if exercised. Nevertheless, no steps appear to have beentaken and no satisfactory explanation for not doing so was given.

72 In my view the accused has properly made out a breach of his charterrights in this respect. Equally, the meaningful ability to exercise the rightto counsel as a component of a valid demand is absent.

(iii) Section 24(2) Charter Assessment73 To the extent that s. 24(2) of the Charter need be considered and the

principles in R. v. Grant, [2009] 2 S.C.R. 353 (S.C.C.) applied, I am sat-isfied that this is a serious breach. The accused is in a diminished posi-tion physically and vulnerable due to the pain impact and immobility.His answers to the police officer give rise to a failure of communication.


In such a case, failure to secure meaningful communication with an in-jured suspect has to present an additional burden upon the police. In thiscase the officer has to be taken as aware that this accused is compro-mised by the collision, by the expression of pain and by the extreme agi-tation. I have noted the uncertainty left by the accused’s responses. Fur-ther, at the hospital where an opportunity to secure telephone contact isnot practical for the reasons of the medical condition, then the officer hasto be taken as having come to understand that the right to consult counselwas not meaningfully present. That fact, once apparent, ought to havebeen an end of the officer’s plan to rely upon the proposed consent.Should the medical condition have made possible and feasible the com-munication with counsel, then obviously it has to be offered in clear lan-guage where the means of communication with counsel is disclosed tothe accused. Failure to do so engages the risk of a meaningful opportu-nity not being secured by the officer for the purposes of the continuedinvestigative interaction with the accused.

Application granted.

R. v. McMichael 317

[Indexed as: R. v. McMichael]

REGINA v. SHANNON LEIGH MCMICHAEL

British Columbia Provincial Court

Docket: Penticton 43277

2017 BCPC 13

G.W. Koturbash Prov. J.

Heard: September 15, 2016


Criminal law –––– Defences — Necessity — Perception of danger –––– Ac-cused arrived at boyfriend’s apartment — Boyfriend was intoxicated and he ver-bally abused her — Boyfriend grabbed accused by shoulders and threw her onground — Neighbour called police and officer told accused she needed toleave — While accused spoke to officer she saw boyfriend throw her backpackand laptop onto patio — Accused contacted friend who lived nearby and leftwithout her backpack or computer — Accused decided to go back to apartmentto retrieve her computer — When she arrived she looked inside apartment andsaw he was not there — Although her laptop and backpack were outside sheused key to go inside apartment — Boyfriend arrived and he assaulted her —Accused ran to her parked car, put laptop inside and drove away after boyfriendthrew piece of furniture at vehicle — Police officer who stopped accused foundher to be calm, polite and responsive to questions — Accused told him she wason her way home and she said nothing about fearing for her safety — Accusedwas charged with impaired driving, driving over 80 and driving while prohib-ited — Accused relied on defence of necessity — Accused convicted — Ac-cused was not truly afraid of her boyfriend and she created situation that shefound herself in — Neither her demeanour nor what she told officer was consis-tent with someone who was in imminent peril, without reasonable legal alterna-tives — To allow accused benefit of defence of necessity on these facts wouldsubstantially lower its legal threshold, which for sound policy reasons had toremain high.

Cases considered by G.W. Koturbash Prov. J.:

R. v. Brown (2008), 2008 ONCJ 341, 2008 CarswellOnt 4732 (Ont. C.J.) —considered

R. v. Costoff (2010), 2010 ONCJ 109, 2010 CarswellOnt 1812, 74 C.R. (6th)369, [2010] O.J. No. 1261 (Ont. C.J.) — referred to

R. v. Desrosiers (2007), 2007 ONCJ 225, 2007 CarswellOnt 3172, 48 C.R. (6th)85, 56 M.V.R. (5th) 96, [2007] O.J. No. 1985 (Ont. C.J.) — considered


R. v. Latimer (2001), 2001 SCC 1, 2001 CarswellSask 4, 2001 CarswellSask 5,[2001] S.C.J. No. 1, 193 D.L.R. (4th) 577, 150 C.C.C. (3d) 129, 39 C.R.(5th) 1, 264 N.R. 99, 203 Sask. R. 1, 240 W.A.C. 1, [2001] 1 S.C.R. 3,[2001] 6 W.W.R. 409, 80 C.R.R. (2d) 189, REJB 2001-21909 (S.C.C.) —considered

R. v. S. (L.) (2001), [2001] B.C.J. No. 3062, 2001 BCPC 462, 2001 CarswellBC3518, 28 M.V.R. (5th) 219 (B.C. Prov. Ct.) — considered

R. v. Sekhon (2007), 2007 ABQB 315, 2007 CarswellAlta 611, 419 A.R. 190,[2007] A.J. No. 517 (Alta. Q.B.) — considered

R. v. V. (C.W.) (2004), 2004 ABCA 208, 2004 CarswellAlta 898, 2 M.V.R. (5th)165, 186 C.C.C. (3d) 243, 33 Alta. L.R. (4th) 59, 354 A.R. 24, 329 W.A.C.24, [2004] A.J. No. 786 (Alta. C.A.) — considered

TRIAL of accused on charges of impaired driving, driving over 80 and drivingwhile prohibited.

Ann Lerchs, for CrownD. Skogstad, for Defendant

G.W. Koturbash Prov. J.:

Introduction1 Shannon McMichael is charged with driving while impaired, with a

blood alcohol level over the legal limit and while prohibited on July 31,2015 in Penticton.

2 The central issue is whether the defence of necessity applies. Ms. Mc-Michael acknowledges that she did drive with a blood alcohol level overthe legal limit when her licence was suspended, but relies on the com-mon law defence of necessity. She argues it was necessary for her todrive to escape her former boyfriend who had assaulted her.

3 Necessity is recognized as a defence when breaking the law is in asense involuntary; that is, in cases where an accused had no real choicebut to break the law. The defence can be broken down into three essentialelements. First, there is the requirement of imminent peril or danger. Sec-ond, the accused must have had no reasonable legal alternative to thecourse of action he or she undertook. Third, there must be proportionalitybetween the harm inflicted and the harm avoided.

R. v. McMichael G.W. Koturbash Prov. J. 319

4 In Latimer, the Supreme Court of Canada summarizes the defenceand reminds us that its application will be rare. The court states at paras.26-27:

The leading case on the defence of necessity is Perka v. The Queen,1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232. Dickson J., later C.J.,outlined the rationale for the defence at p. 248:

It rests on a realistic assessment of human weakness, rec-ognizing that a liberal and humane criminal law cannothold people to the strict obedience of laws in emergencysituations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel diso-bedience. The objectivity of the criminal law is preserved;such acts are still wrongful, but in the circumstances theyare excusable. Praise is indeed not bestowed, but pardonis...

Dickson J. insisted that the defence of necessity be restricted to thoserare cases in which true “involuntariness” is present. The defence, heheld, must be “strictly controlled and scrupulously limited” (p. 250).It is well established that the defence of necessity must be of limitedapplication. Were the criteria for the defence loosened or approachedpurely subjectively, some fear, as did Edmund Davies L.J., that ne-cessity would “very easily become simply a mask for anarchy”:Southwark London Borough Council v. Williams, [1971] Ch. 734(C.A.), at p. 746.

R. v. Latimer, 2001 SCC 1

5 The first two essential requirements are assessed on a modified objec-tive standard, that is, the standard or perceptions of a reasonable persontaking into account the particular circumstances and frailties of the ac-cused. The third requirement, proportionality, is assessed solely on anobjective standard.

6 Finally, Ms. McMichael does not have to prove that the defence ofnecessity applies. The Crown must prove beyond a reasonable doubt thatit does not. Therefore:

• If I accept the evidence in support of the defence of necessity Imust acquit.

• If I do not accept the evidence in support of the defence of neces-sity, but I am left with a reasonable doubt by it, I must acquit.

• Even if I am not left in a reasonable doubt by the evidence insupport of the defence of necessity, I must still go on to determine


whether or not, on the basis of all the evidence, the accused isguilty.

Issues

1. Did Ms. McMichael drive her vehicle while faced with an urgentsituation of clear and imminent peril?

2. Was there any legal alternative available to Ms. McMichael?

3. Was the harm inflicted by Ms. McMichael’s driving dispropor-tionate to the harm she sought to avoid?

Analysis

1. Did Ms. McMichael drive her vehicle while faced with an urgentsituation of clear and imminent peril?

7 This requirement tests whether the actions of the accused were trulyunavoidable. At a minimum, the situation must be one which cries outfor action where it would not be prudent to wait and see if there is an-other way to deal with it. In other words, was the danger one which oursociety would not expect the average person, in the circumstances similarto the accused, to with-stand.

8 The situation must be a true emergency. In Latimer, the SupremeCourt of Canada said, “Where the situation of peril clearly should havebeen foreseen and avoided, an accused cannot reasonably claim any im-mediate peril”. R. v. Latimer, 2001 SCC 1 (S.C.C.) at para. 29.

9 In other words if an accused actually contemplates, or if a reasonableperson in the accused’s situation would have contemplated, that her ac-tions would likely give rise to the situation of imminent peril requiringthe breaking of the law, then the accused is not entitled to rely on thedefence of necessity. Essentially, it cannot be said that the accused isconfronted with a real emergency when s/he is responsible for puttingthemselves in the situation.

10 In V. (C.W.), the court considered the issue of the contributory faultof the accused. The accused attended a party to recover a keg of beer,despite knowing the ownership of the keg was in dispute. When he at-tended he was set upon by a group of people who began attacking hiscar. Fearing for his safety, he backed his car away from the crowd hittingtwo people. The trial judge was satisfied that the accused met the three-part test for necessity but determined that the defence was not available


because the accused could not have gone to the residence without somethought of a “possibility” that doing so would result in problems.

11 The Alberta Court of Appeal overturned the conviction. While it wasopen to the trial judge to find that the accused’s conduct negated the de-fence of the necessity, the judge could only do so if he found the accusedactually foresaw or ought to have foreseen the situation of necessity. Amere possibility was not enough. R. v. V. (C.W.), 2004 ABCA 208 (Alta.C.A.).

12 According to Ms. McMichael, she arrived at her boyfriend’s apart-ment around 9 p.m. He was intoxicated and began verbally abusing her.Ms. McMichael had been in an abusive relationship in the past, but hadnever seen this side of her then current boyfriend. She described him as“outrageous” and “wasted”.

13 He grabbed her by the shoulders and threw her onto the ground. Aneighbour asked if she was okay and she said no. The neighbour calledpolice.

14 When Cst. Caruso arrived, he could immediately tell that Ms. McMi-chael had been drinking and told her that she needed to leave.

15 While she was speaking to the officer, Ms. McMichael saw her boy-friend throw her backpack and laptop onto the patio. She called a friendand left without her backpack or computer.

16 In cross-examination Ms. McMichael said that had she stayed, the ar-guing would have continued and he could have gotten violent again. Shesaid she was afraid of him and the best course of action was to leave.

17 She stayed at her friend’s place approximately 3 to 4 blocks awayfrom her boyfriend’s apartment. After her friend fell asleep, she decidedto go back to her boyfriend’s apartment to retrieve her laptop. Ms. Mc-Michael said it did not cross her mind to ask the police to assist her.Although she said she did not expect her boyfriend to be at the residence,she did not explain why this was so except to say that is the way he is.

18 In cross examination she agreed it was not a good decision and knewif she met up with him, things would escalate and there would be trouble.However, she said she was hoping he had calmed down and that thingswould be fine.

19 When she arrived at the residence, she looked inside and could tell hewas not at home. Although her laptop and backpack were outside, sheused a key to go inside the apartment. While inside her boyfriend re-turned. She described him as drunker than before. He was angry and


pushed her against the wall. She managed to get free and ran to her carparked outside the apartment.

20 She said her intention was to simply put the laptop inside the car andnot drive. When asked why she would be concerned about putting herlaptop in the car and not running away if she felt she was in harm’s way,Ms. McMichael replied, “Because that is the way I am. I maybe do notreact the same way some people might.”

21 When she was putting the laptop inside the vehicle, her boyfriendthrew part of a bed frame at the vehicle denting it. At that point, shedecided to get into the vehicle and leave.

22 Ms. McMichael said she was afraid that she would be assaulted if sheremained at the scene, cried out for help, or tried to run. In her eyes heronly option was to get in the car and drive away.

23 Ms. McMichael testified that she has never seen this side of her boy-friend. She opined that his behaviour was likely the combination of alco-hol and his use of steroids.

24 I do not accept that Ms. McMichael was truly afraid of her boyfriend.Her actions of returning to the apartment are inconsistent with that fearbut furthermore, when Ms. McMichael was stopped by Cst. Caruso, hedescribed her as chatty, engaging, and never once mentioning anythingabout being assaulted or fleeing from her boyfriend. Although she wouldlike me to believe she omitted telling the officer this because she stillcared for her boyfriend and did not want to get him into trouble, I do notaccept her explanation.

25 Even if I had a reasonable doubt about this, which I do not, she cre-ated the situation she found herself in. Despite having been assaulted ear-lier by her boyfriend, and warned by Cst. Caruso to go home or stay at afriend’s place, Ms. McMichael chose to return to the apartment. She re-turned in less than 40 minutes. She could not have expected her boy-friend to have sobered up, and cooled off.

26 When she returned, she did not simply go on the deck to retrieve thelaptop but she used a key to enter her boyfriend’s apartment without hisconsent. By returning to the scene and going inside the apartment, shemust have or ought to have foreseen the likelihood that there would be afurther altercation causing the necessitous situation.


2. Was there any legal alternative available to Ms. McMichael?27 The second requirement for the defence of necessity is that there was

no reasonable legal alternative to committing the offence. This require-ment gives rise to the question whether a reasonable person faced with anurgent situation of clear and imminent peril, in circumstances similar tothe accused, could realistically avoid the peril without committing theoffence. If there was a reasonable, alternative course of action that wasopen to the accused, the defence of necessity does not apply because itwas not really necessary to break the law.

28 In determining whether or not there were reasonable legal alternativesor other safer avenues of escape, it is appropriate to take into accountMs. McMichael’s particular circumstances and human frailties, includingher ability to perceive the existence of alternative courses of action.

29 Furthermore, it is also not the task of the court to exhaust all of thepotential possibilities which one can consider with the benefit of hind-sight. R. v. Costoff, 2010 ONCJ 109 (Ont. C.J.) at para. 26.

30 Ms. McMichael, through counsel, submits that she was upset and didnot have the time or ability to carefully weigh her options and explorealternatives.

31 I do not agree.32 When Ms. McMichael was stopped by police, although still upset, she

was not crying and distraught. Rather, she is described as being calm,polite and responsive to questions, even chatty and engaging.

33 She told the officer she was on her way home and mentioned nothingabout fearing for her safety or the alleged assault.

34 Neither her demeanour nor what she told the officer is consistent withsomeone who is in imminent peril, without no reasonable legalalternatives.

35 When Ms. McMichael was stopped she already travelled severalblocks, yet had not seen anyone pursuing her. Despite this she said shewas intent on driving all the way to her residence which was still severalblocks away.

36 A similar situation arose in R. v. Brown [2008 CarswellOnt 4732(Ont. C.J.)]. In that case, the accused testified that he was accosted afterleaving a liquor establishment. He was able to get into his car and pan-icked because the individuals who accosted him were trying to get intohis vehicle. He drove away. He said he was planning on driving to agrocery store parking lot, where he planned to call a cab to get home


safely. He said that he did not stop at the police station he drove pastbecause he was intoxicated and panicky.

37 The Crown argued that Mr. Brown should not have driven but insteadcalled the police from his vehicle. The trial judge did not agree. How-ever, did agree that once the accused left the scene and shaken off thepursuers, he could have pulled into the police station.

38 On appeal, Mr. Brown argued that because he did not choose the bestoption he should not be disentitled to the defence of necessity. The ap-pellate court did not agree. The court pointed out that not only was thereno evidence that the accused was still being pursued (vehicle was beingdriven slowly), there was a reasonable legal alternative available to him;he could have turned into the police station parking lot. Justice Brophystates at paragraph 30:

Mr. Brown could have terminated his unlawful conduct of drivingwhile impaired if he had sought police assistance at the first availableopportunity. He did not do so, intoxication is not a valid reason forfailing to recognize a reasonable legal alternative.

39 In another case, R. v. Sekhon [2007 CarswellAlta 611 (Alta. Q.B.)],after being assaulted at a party by several individuals, the accused fled inhis vehicle. Two or three of his attackers followed him in another vehi-cle. He was stopped by police a block and half away. The trial judgeaccepted the defence of necessity and found him not guilty.

40 On appeal, the court held that the trial judge erred by not addressingwhether at the time of the arrest the accused was in imminent peril. Jus-tice Belzil states at paragraphs 39-45:

It must be remembered that the Crown is not required to prove that atthe time of arrest the Respondent was not facing any peril or someperil; rather, the Crown is required to prove that the Respondent wasnot in imminent peril.

. . .

In other words, there was no discussion of the lessening of the degreeof peril which the Respondent faced once he was inside the vehicleand on a major arterial roadway in full public view. Thus, by the timeof his arrest, the peril faced by the Respondent had lessened consid-erably and could no longer be considered imminent peril.

. . .

Quite aside from the issue of the lessening of peril faced by the Re-spondents, there is no evidence that the Respondent re-assessed hisalternatives to continued driving once he entered onto 137th Avenue.


Surely it follows that if the circumstances facing the Respondent hadsignificantly changed, the Respondent was obliged to reconsiderwhether he had legal alternatives to continued driving at that point.

. . .

In my view, the trial judge erred in not addressing the issue ofwhether or not the Respondent had legal alternatives once he enteredonto 137th Avenue. At a minimum, the Respondent had with him anoperable cell phone which could easily have been utilized if he hadsimply stopped his vehicle on 137th Avenue and dialled 9-1-1 andwhere he would be in full public view.

. . .

Notably, the Respondent did not testify that he considered any alter-native course of action other than continuing to drive.

R. v. Sekhon, 2007 ABQB 315, upheld 2008 ABCA 171, leave toappeal refused [2008] SCCA 297

41 Justice Belzil concluded that the defence of necessity could not berelied upon and entered a conviction. This finding was upheld by theAlberta Court of Appeal and leave to appeal refused by the SupremeCourt of Canada.

42 Ms. McMichael relies on S. (L.), a decision by Judge Bayliff from ourcourt. The case is distinguishable in that some of the options available toMs. McMichael were not reasonably available to S. (L.) because S. (L.)was also protecting her young child. In addition, S. (L.) was stopped lessthan one block, not several, from where the assault occurred. R. v. S. (L.),2001 BCPC 462 (B.C. Prov. Ct.).

43 Like Mr. Sekhon, even if I accept Ms. McMichael was in imminentperil when she left the scene, she was not in any peril when she wasstopped by the police. Like Mr. Sekhon, Ms. McMichael had a duty toreassess her situation and look for reasonable legal alternatives.

44 During her testimony, Ms. McMichael did not deny she could havedriven and stopped at either the Bad Tattoo or the Lakeside Resort whichwere a short distance away. When asked why she did not, she said shewas “embarrassed and did not want to bring anyone else into her life.”

45 At a minimum, after travelling a few blocks, she could simply havestopped her vehicle and called her friend or police.


3. Was the harm inflicted by Ms. McMichael’s driving disproportionateto the harm she sought to avoid?

46 The third requirement is that there be proportionality between theharm inflicted and the harm avoided. The harm inflicted must not be dis-proportionate to the harm the accused sought to avoid. In some cases,evaluating proportionality can be difficult. The law does not require thatthe harm avoided must clearly outweigh the harm inflicted. Rather theharm must be of comparable gravity, or of greater gravity, than the harminflicted.

47 Although in a number of cases judges have considered potentialharm, in R. v. Desrosiers [2007 CarswellOnt 3172 (Ont. C.J.)], the courtopined that the third requirement only takes into account actual harm.The judge stated:

The third requirement is that there must be proportionality betweenthe harm inflicted and the harm avoided. This is measured strictly onan objective standard. The public interest in drinking and driving of-fences is considerable. The carnage of drinking and driving is wellknown. Some three people a day die in Canada from drinking anddriving. Countless more are injured. The misery index is incalcula-ble. However, the third requirement does not take into account poten-tial harm. Actual harm is the barometer. In this case, no harm wasdone to the public. This is good luck more than good management,but it does not matter. The bottom line is the public was not harmed,fortunately. On the other hand, the harm avoided could not be higher,being the preservation of life.

R. v. Desrosiers, 2007 ONCJ 22548 Given my findings with respect to the first two requirements, a reso-

lution regarding the proper interpretation can be left for another day.

Conclusion49 To allow Ms. McMichael the benefit of the defence of necessity on

these facts would substantially lower the legal threshold, which for soundpolicy reasons must remain high. Even I accepted that Ms. McMichaelfound herself in imminent peril, she created the peril she found herself in.Furthermore, to suggest that once she decided to drive while impairedthat she could continue driving until she decided it was safe to stopwould ignore the objective part of the analysis that requires the court toconsider whether there were other reasonable legal alternatives that shecould have taken to stop driving sooner.


50 I find Ms. McMichael guilty on all three counts.

Accused convicted.


[Indexed as: R. v. Noganosh]

HER MAJESTY THE QUEEN and Heather Noganosh(Defendant)

Ontario Superior Court of Justice

Docket: CR-16-07

2017 ONSC 131

E.J. Koke J.

Heard: June 29, 2016; January 5, 2017


Criminal law –––– Offences — Dangerous driving causing death — Sentenc-ing — Adult offenders –––– Accused was 34-years, but was novice driver,when she tried passing two trucks pulling trailers and caused accident by hittingoncoming vehicle — Two people in other vehicle died and one occupant oftruck was injured — Accused pleaded guilty to two counts of dangerous drivingcausing death and one count of dangerous driving causing bodily harm — Ac-cused was sentenced to 12 months’ incarceration for dangerous driving causingdeath and three months’ concurrent for dangerous driving causing bodilyharm — Accused was person of Aboriginal heritage who had four children —Aggravating factors included that accused was familiar with risks associatedwith driving on road where accident occurred, accused was driving faster thanspeed limit, there was no need for her to pass trucks, accused did not take oppor-tunity to pull back after she passed first truck and trailer, accused was not aloneand was pregnant and put her baby and passengers and occupants of nearby ve-hicles at risk, accused made intentional decision to pass, and her actions resultedin multiple deaths and physical and emotional injuries to number of people —Mitigating factors included that accused had been described as kind and caringmother to her children and daughter to her parents, accused’s parents were de-pendent on her help, accused was novice driver, accused had never been introuble with law before and her lack of care at time of accident was inconsistentwith her prior conduct, accused made momentary lapse in judgment, there wasno evidence of speeding or driving in careless manner before she moved intopassing lane, accused pleaded guilty and expressed remorse — While period ofincarceration was relatively short it could serve principles of restorative justiceand rehabilitation when combined with substantial community service order.

Criminal law –––– Offences — Dangerous driving causing bodily harm —Sentencing — Adult offenders –––– Accused was 34-years, but was novicedriver, when she tried passing two trucks pulling trailers and caused accident byhitting oncoming vehicle — Two people in other vehicle died and one occupant

R. v. Noganosh 329

of truck was injured — Accused pleaded guilty to two counts of dangerous driv-ing causing death and one count of dangerous driving causing bodily harm —Accused was sentenced to 12 months’ incarceration for dangerous driving caus-ing death and three months’ concurrent for dangerous driving causing bodilyharm — Accused was person of Aboriginal heritage who had four children —Aggravating factors included that accused was familiar with risks associatedwith driving on road where accident occurred, accused was driving faster thanspeed limit, there was no need for her to pass trucks, accused did not take oppor-tunity to pull back after she passed first truck and trailer, accused was not aloneand was pregnant and put her baby and passengers and occupants of nearby ve-hicles at risk, accused made intentional decision to pass, and her actions resultedin multiple deaths and physical and emotional injuries to number of people —Mitigating factors included that accused had been described as kind and caringmother to her children and daughter to her parents, accused’s parents were de-pendent on her help, accused was novice driver, accused had never been introuble with law before and her lack of care at time of accident was inconsistentwith her prior conduct, accused made momentary lapse in judgment, there wasno evidence of speeding or driving in careless manner before she moved intopassing lane, accused pleaded guilty and expressed remorse — While period ofincarceration was relatively short it could serve principles of restorative justiceand rehabilitation when combined with substantial community service order.

Cases considered by E.J. Koke J.:

R. v. Boukchev (2003), 2003 CarswellOnt 3954, 177 O.A.C. 119, [2003] O.J.No. 3944 (Ont. C.A.) — considered

R. v. Carleton (2012), 2012 MBPC 54, 2012 CarswellMan 426, [2012] M.J. No.285, 282 Man. R. (2d) 247 (Man. Prov. Ct.) — considered

R. v. Fitt (2011), 2011 ONCJ 223, 2011 CarswellOnt 2826, [2011] O.J. No.1961, 14 M.V.R. (6th) 246 (Ont. C.J.) — considered

R. v. Gladue (1999), [1999] S.C.J. No. 19, 1999 CarswellBC 778, 1999 Car-swellBC 779, 133 C.C.C. (3d) 385, 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R.252, 23 C.R. (5th) 197, 238 N.R. 1, [1999] 1 S.C.R. 688, 121 B.C.A.C. 161,198 W.A.C. 161, [1999] A.C.S. No. 19 (S.C.C.) — considered

R. v. Hodder (2012), 2012 CarswellNfld 160, [2012] N.J. No. 155, 1000 A.P.R.243, 322 Nfld. & P.E.I.R. 243, 33 M.V.R. (6th) 308 (N.L. Prov. Ct.) —considered

R. v. L. (J.) (2000), 2000 CarswellOnt 2649, 147 C.C.C. (3d) 299, [2000] O.J.No. 2789, 5 M.V.R. (4th) 76, 135 O.A.C. 193 (Ont. C.A.) — considered

R. v. Lam (2003), 2003 CarswellOnt 4081, [2003] O.J. No. 4127, 43 M.V.R.(4th) 1, 178 O.A.C. 275, 180 C.C.C. (3d) 127, 19 C.R. (6th) 377 (Ont.C.A.) — considered

R. v. Leask (1996), 112 C.C.C. (3d) 400, 113 Man. R. (2d) 265, 131 W.A.C.265, 1996 CarswellMan 577, [1996] M.J. No. 586 (Man. C.A.) —considered


R. v. Marona (2010), 2010 ABQB 588, 2010 CarswellAlta 1820, 3 M.V.R. (6th)6, 34 Alta. L.R. (5th) 203, [2010] A.J. No. 1048 (Alta. Q.B.) — considered

R. v. Regier (2011), 2011 ONCA 557, 2011 CarswellOnt 8338, [2011] O.J. No.3749, 16 M.V.R. (6th) 20, 282 O.A.C. 392 (Ont. C.A.) — considered

R. v. Rij (1993), 44 M.V.R. (2d) 299, 1993 CarswellOnt 19, [1993] O.J. No.4381 (Ont. Gen. Div.) — considered

R. v. Ryazanov (2008), 2008 ONCA 245, 2008 CarswellOnt 1791, [2008] O.J.No. 3916 (Ont. C.A.) — considered


Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 249(3) — referred tos. 249(4) — referred tos. 718.2 [en. 1995, c. 22, s. 6] — considereds. 718.2(e) [en. 1995, c. 22, s. 6] — considered

Indian Act, R.S.C. 1985, c. I-5Generally — referred to

SENTENCING of accused for convictions for two counts of dangerous drivingcausing death and one count of dangerous driving causing bodily harm.

Steven Scharger, for CrownLarry Douglas, for Defendant

E.J. Koke J.:

Introduction1 On June 29, 2016 Heather Noganosh pleaded guilty to the following

offences listed on an indictment dated April 20, 2016:

a) Count 4 of the Indictment: Operating a vehicle on a highway in amanner that was dangerous to the public and thereby causing thedeath of Andre Veilleux, contrary to section 249(4) of the Crimi-nal Code of Canada.

b) Count 5 of the Indictment: Operating a vehicle on a highway in amanner that was dangerous to the public and thereby causing thedeath of Doreen Veilleux, contrary to section 249(4) of the Crimi-nal Code of Canada.

c) Count 6 of the Indictment: Operating a vehicle on a highway in amanner that was dangerous to the public and thereby causing bod-ily harm to Steven Helderley, contrary to section 249(3) of theCriminal Code of Canada.

R. v. Noganosh E.J. Koke J. 331

The circumstances of the offences2 Highway 69 is a provincial roadway which runs between the Town of

Parry Sound in the south and the community of French River in theNorth. It is primarily a two–lane undivided highway, but in various loca-tions an additional passing lane has been added to the southbound andnorthbound lanes.

3 Although the additional passing lanes which have been added to thesouthbound lanes are designed primarily to allow southbound traffic topass slower moving vehicles, it is not unusual or impermissible for theselanes to be used by northbound vehicles for passing other northboundvehicles when these passing lanes are clear of southbound traffic. Simi-larly, southbound vehicles may also use the northbound passing lanes forpassing other vehicles when these lanes are clear of northbound traffic.

4 Hwy 69 is located in the heart of cottage country and is known to bevery busy on weekends during the summer months.

5 On Saturday afternoon, July 25, 2015 thirty–four year old HeatherNoganosh was operating a Chevrolet Silverado pickup truck northboundon Hwy 69. Ms. Noganosh was a novice driver with an Ontario “G1’”class licence, a classification which required her to be accompanied by afully licenced driver. Seated next to her was her thirty–six year old sister,Brenda Salerno who was a licenced driver. Seated in the back seat wastwenty–nine year old Sheena St. Clair. The three women were returningfrom a grocery shopping trip to Parry Sound and were on route to theMagnetewan First Nation.

6 When Ms. Noganosh was about three kilometres south of the commu-nity of Point au Baril Station she found herself behind two northboundpickup trucks hauling “5th wheel” camper trailers. Observing that therewas a southbound passing lane at this location she decided to enter thispassing lane and pass the slower moving vehicles ahead of her. At thepoint where she entered the passing lane the roadway was downhill andhad dashed yellow lines between the northbound lane and the south-bound passing lane, indicating northbound traffic could pass if the road-way was clear.

7 Ms. Noganosh passed the first vehicle, a GMC Sierra pickup truckand then continued to drive in the southbound passing lane at a high rateof speed, presumably with the intention of passing the second pickuptruck. At this point the road began to incline uphill and curve to the leftwith trees and a “rock cut” on both sides of the roadway. Ms. Noga-


nosh’s view of the roadway ahead was obstructed at this point and thedashed yellow line had changed to a solid line.

8 As she approached the second pickup truck a south bound Jeep GrandCherokee which was traveling in the southbound passing lane roundedthe corner and came into view. Ms. Noganosh responded by swerving toher left into the southbound driving lane in an attempt to avoid a colli-sion with the Grand Cherokee. However, the front right corner of herpickup truck collided with the front right corner of the Grand Cherokee,causing the Jeep to rotate clockwise and into the northbound drivinglane. After entering this northbound lane the northbound GMC Sierrawhich Ms. Noganosh had just passed struck the driver’s side of theGrand Cherokee.

9 The Grand Cherokee sustained severe damage as a result of the im-pact and the two occupants, Andre and Doreen Veilleux were pro-nounced dead at the scene. The GMC Sierra also sustained damage to itsfront end and after emergency responders extricated the occupants fromthis vehicle they were taken to the West Parry Sound Health Centrewhere one of the occupants, Steven Hilderley was diagnosed with brokenribs and a fractured vertebra bone in his back.

10 On August 4, 2015, after the OPP had completed their investigation,Ms. Noganosh was arrested and charged with these offences. She wasreleased on a Promise to Appear and an Undertaking and has been out ofcustody and awaiting the disposition of these charges since the date ofher arrest.

Circumstances of Ms. Noganosh11 To assist the court with sentencing Ms. Noganosh, a Pre–Sentence

Report was prepared by Ms. Bonnie Keith, a probation and parole officerwith the Ministry of Community Safety and Correctional Services. AGladue report was also prepared by Ms. Maggie Linklater, who is withthe Aboriginal Legal Services of Toronto.

12 Gladue reports are produced in accordance with the 1999 SupremeCourt of Canada’s ruling in R. v. Gladue [1999 CarswellBC 778(S.C.C.)]. Specifically, Gladue Reports pertain to the application of sec-tion 712.2(e) of the Criminal Code, a section which directs the courtsthat all available sanctions, other than imprisonment, that are reasonablein the circumstances, and consistent with the harm done to victims and tothe community should be considered for all offenders, with particular at-tention to the circumstances of Aboriginal offenders. Ms. Noganosh is of


Aboriginal heritage and is recognized as a status Indian under the IndianAct.

13 Ms. Linklater reports that Heather Noganosh is one of 7 children. Sheis 35 years old. She is Ojibway and was raised on Magnetewan FirstNation located north of Parry Sound, Ontario.

14 Ms. Linklater reports that Ms. Noganosh’s biological father diedwhen she was very young and she was raised by her mother ChristinaPitawanakwat and her stepfather, Theodore Pitawanakwat who adoptedher when she was 2 years old.

15 Ms. Noganosh continues to live on the Magnetewan First Nation withher four children, Marquis, age 12, Delsin–Ray, age 10, Tee–Anna, age 2and Miracle, age 1. She supports herself and her children on ODSP.

16 Ms. Linklater reports that Ms. Noganosh has been in three significantrelationships and became a mother at a young age. Her first relationshipwas with a man named Cosmo. Cosmo is Marquis’ dad. They did notlive together but spent a weekend together. After Marquis was born hevisited his son once and then she did not hear from him again.

17 She met Francis Pegnegabow when Marquis was about 2 years old.He is Delsin–Ray’s dad. They were together for about a year but she lefthim because of his drinking. She explained to Ms. Linklater that she didnot want her boys to be “around that stuff.”

18 Next, she met Torian Joseph. Torian is Tee–Anna and Miracle’s dad.She explained that they had been “on and off” for the past three years.They are on and off because of his drinking and his smoking “weed”.She explained that he has an anger problem and so she locks him outwhen he arrives at her home high on “weed” or alcohol and in an angrymood.

19 On the subject of residential schools Ms. Keith reported that Mr.Pitawanakwat informed her that his mother attended a residential schooland that she described her experience in positive terms. His mother waspleased that she learned to read and write English since this enabled herto help her people over the years in completing forms. He indicated thatmany of the family members on his maternal side have had careers asnurses and doctors and he described his parents as loving familymembers.

20 Mr. Pitawanakwat related that he started working at 17 years of age inthe construction field. By the 1990’s he was the driver for theMagnetewan First Nation transportation van and he worked in this capac-


ity until 2013 when he retired due to his diabetes and the loss of his leftleg. He has subsequently lost part of his right leg and he now walks withtwo prostheses.

21 Mr Pitawanakwat noted that Ms. Noganosh’s two boys have strongathletic hockey ability and he supports their efforts. He was proud thatthis summer they had attended hockey camp and that they are on anall–star team. He indicated when the two boys are not playing hockeythey are playing baseball. He and his wife are the drivers for Ms. Noga-nosh and her children and take them wherever they have to go.

22 With respect to the environment in which she was raised Ms. Noga-nosh reported the following to Ms. Linklater:

It was good as I was growing up. Nothing bad happened to me. Myparents were very good to me. Public school was good but highschool was hard. Public school didn’t teach me how to read so whenI got to high school it was really hard. Now with my learning disabil-ity it’s a bummer because I can’t read and write, that why I can’t geta job. When I was a teenager we lived on reserve. I liked being onthe reserve. I didn’t drink or smoke, I just was not into that kind ofthing. That’s not cool.

23 Ms. Noganosh spoke about her future plans to Ms. Linklater asfollows:

I live in Magnetewan with my four children, Marquis, Delsin–Ray,Tee–Anna and Miracle on the reservation. It’s lonely there especiallynow that I can’t leave my house. If I could, I would take my kidsplaces. I do volunteer my time with Magnetewan Health Centre. Ivolunteer at Elders Luncheons and the Tiny Tots program once aweek. I participate in smudging and workshops and I have gone tosee Elders now and then. I look forward to volunteering more at theHealth Centre; they said I can come back and I’m happy about that.

I want to go to college and in the future open my own daycare. I wantto stay in Magnetewan because it’s safe for my kids and it’s quiet.

Comments from friends, family members and members of the community24 Ms. Linklater interviewed a number of Ms. Noganosh’s acquaint-

ances and relatives. Ms. Noganosh’s cousin Lee–Ann provided the fol-lowing comments about Ms. Noganosh:

She is not a negative person. She always tried to find the good ineverything. She’s an awesome mom. She’s a very social mom; veryactive in their lives. She makes sure they have everything they need.She’s like my best friend or sister. Heather has so much patience.


25 Ms. Noganosh’s mother Christina who suffers from a disability de-scribed Heather as follows:

She’ll come up and see what needs to be done. She provides home-care, attends medical appointments, bathing and cooks us dinner.She’s usually there from 8:30 a.m. until 8.00 p.m. She’s been doingthis since Theodore got his double leg amputation six years ago. Ineed her to be there for us. I’m really happy she’s there to guide andhelp me.

26 Ms. Noganosh’s brother Chris commented that:She is a good person with a good heart. She finds the best in people.She’s a great person to be around. She’s always involved in the com-munity. She always has her kids out. Baseball in the summer.Hockey in the winter. She always puts her kids first. For her being asingle parent, I’m super proud of her. It’s such a tragedy that this hadto happen to such an amazing person. She would never want to hurtanyone. It really hurts me that she has to go through this on her own.

Our family is such a tight knit crew and when one of us goes down,we all go down too. Since the accident, everyone has felt it. It’s beena super hard year. Both my parents have diabetes and we lost oursister in February. It’s like so much has happened and I wonder whenit’s all going to end. It’s just been super hard. It’s just been so hard tohear the things they say in the media. I hope when all is said anddone it will all work out for her. Heather is the only person who cantake care of my parents. Me and my brothers all work. If Heatherisn’t around no one will be there to take care of them.

27 Mr. Pitawanakwat informed Ms. Keith that Ms. Noganosh is a verygood mother to her children. He indicated he has never been in conflictwith the law and prior to this incident Ms. Noganosh had never been introuble with the law either.

28 According to Mr. Pitawanakwat, Ms. Noganosh attended the local el-ementary school and she did well there but they basically passed heralong and they didn’t seem to care that she could not read or write well.In high school she had a special education counsellor and the educationalassistant would help her by reading her the questions and then she wouldanswer verbally. When the weather was bad and the school bus did notrun to Parry Sound he would drive her. . .she never missed a day of highschool for which he is very proud.

29 Lloyd Myke, an elected band councillor at the Magnetewan First Na-tion advised Ms. Keith that he has known Ms. Noganosh all her life andthat she has spoken to the Band Council regarding the court matters. Mr.


Myke spoke at the sentencing in support of Ms. Noganosh, and filed aletter signed by the chief and council members in which they expressedthat Ms. Noganosh is a very kind and compassionate person, attentive toher parents and children and is an active volunteer within the community.Mr. Myke informed the court Ms. Noganosh keeps her house in an im-peccable manner and is a good community citizen. She has never hadany issues with alcohol or drugs or cigarettes and is a good young lady.”

30 Other letters filed by friends and members of the Magnetewan FirstNations community were unanimous in their praise of Ms. Noganosh andher commitment to being a good parent, friend, daughter and involvedmember of the community.

Impact of Ms. Noganosh’s conduct on the victims and thecommunity

31 The deceased, Andre and Doreen Veilleux were in their seventies andhad just celebrated their 50th wedding anniversary at the time of this inci-dent. It is apparent that they played a major supportive role in the lives oftheir children and grandchildren.

32 Brenda and Steven Hilderley, who were the occupants of the pickuptruck which struck the Veilleux vehicle were 52 years old. They werelooking forward to retiring in 4 or 5 years and spending their retirementyears traveling in their recently purchased 5th wheel trailer. They wereboth injured in the collision and continue to experience both physical andemotional discomfort.

33 A number of victim impact statements were filed with the court. Ihave included some excerpts from these statements.

34 Sydney Duncan, who was the Veilleux’ granddaughter and about tocommence university studies in Ottawa at the time of the accident wrotethe following comments in her statement:

My relationship with my grandparents wasn’t typical. They were ex-tremely involved in my childhood and celebrated everything I ac-complished with my family and I. Birthdays, Christmas, even justgetting a good mark in school, you name it, they were there. How-ever, when my father left, they decided to partake in our lives evenmore and help my mother through that. Moreover, they helped Cal-lum and I through that as Mom was so caught in her own emotionsthat she found trouble in doing some everyday household tasks. Overthe few years after, they did everything they imaginably could. Papahelped Mom fix up the house so it was ready to sell. Granny helpedMom organize everything to move it. They cooked dinners when


Mom couldn’t find the time or was too busy that day. They even builtan in–law suite downstairs to help support my mom financially in ournew home. I saw them every day. Papa drove Callum and I to schoolin the morning and Granny picked us up after school or even droveus to work if needed.

35 Sydney’s brother Callum wrote:I just can’t seem to be able to wrap my head around the fact that theyaren’t coming home. I didn’t just lose my grandparents; I lost mysecond set of parents. Whether it was greeting Papa with our specialhandshake and watching TV together or visiting Granny for talksabout how her and my day were, helping her with technology and hermaking everyone an amazing dinner or lunch. They were alwaysthere in our daily lives. They are and always will be the people I lookup to the most in the world and they will always be my role models. Ihope that someday I can be half the man that Papa was.

36 The Veilleux’ daughter Christine Duncan wrote:. . .five years ago when my husband walked out the door and left meto raise our two preteen children, they were here. When I lost my joband I was struggling financially, they were here. When I couldn’tmake ends meet and pay the mortgage, they built an in–law suite andmoved in below me; they were here. As a working single parent Irelied on them to help me parent my children. When I couldn’t bethere for Sydney and Callum they were, driving them to work andschool when needed, providing meals, listening and offering wordsof advice.

When I needed them to help raise my children; they were here.

They are not here anymore. They were such loving and giving peo-ple. Their lives mattered. They were my safety net and most days itfeels like I am free falling. Since the accident, I have a nervous tic Ican’t get rid of that belies my bravery. In an instant my life changedforever and I will never be the same.

37 The Veilleux’ son Donald Veilleux wrote:I would like to explain to everyone here exactly who these peoplewere to our lives. They were the embodiment of unconditional lovefor all of us. Our parents were a shoulder to cry on, a pair of ears tolisten, a voice to teach us and provide us with the wisdom of theirexperiences. They were companions to grow, cry, and laugh with asthey came to appreciate us for the mother, uncle, grandson, grand-daughter, and fiance that we’ve become. They were all of this andmore.


. . .My parents loved my sister and I very much. They saw both of usthrough many ups and downs. They allowed us to make mistakes, butwere always there to pick up the pieces. Mom and Dad were alwaysin our corner! They gave us a voice, and made us who we are today.Mom and Dad celebrated our achievements. When we stumbled wewere given the guidance we needed. I wish I could hug them and saythat to them right here, but I can’t.

38 Mr. Hilderley wrote:. . .having a broken back can seem like a life limiting sentence. Wewere starting to talk about our retirement years and travelling. En-joying the variety of sites to see was the reason we had this type oftruck and trailer. Our plan was to tour around the warmer climates inthe Southern US during our winter months. Now our ability to do thisas we had planned is very much in jeopardy.

My biggest concern at the moment is my ability to maintain my stan-dard of work and my employer’s willingness to allow me the latitudeto continue as I have. My memory has suffered since this incidentand since this is a vital part of what I need to do at work to be suc-cessful, I am concerned for my professional future.

. . .as my wife has been a paramedic for the past 28 years, her role inlife is to help people in need, not to be involved in an incident wheresomeone else suffers injury or death. When these actions are out ofour control, we want to forget and get back to normal as soon aspossible. That is what we struggle to do day after day after day in thehopes that sometime soon, we may once again find peace.

39 Ms. Hilderley wrote:. . .August 11, 2015 was my appointment with the family doctor. Hewas amazed that we survived the crash. Again this reminded me ofhow lucky I am to be alive and very sad that I killed 2 people. Hediagnosed me with PTSD, post–concussion and soft tissue injuriesthat could take up to 3 years to heal. He wrote me off work untilJanuary 2016 with reassessments monthly. He also prescribed morepain medication, muscle relaxers, physio, psychologist, massage, hottub soaking and sauna.

I have been accommodated with modified work and hate it. It issteady days auditing ambulance calls. I am trying very hard to acceptthat this is how I may end my career, which is 4 years away.

February 2016 I started my sessions with a psychologist. I have nevercried so much in my life. At this time I have completed 12 sessionsand waiting approval for 8 more. I stopped taking the antianx-iety/depression medication because I felt more depressed on them.


I continue to have weekly massage, chiropractor, and physio appoint-ments to make it through the days. Some days I find I struggle morewith forgetfulness when I am stressed. Monthly I get reassessed forpain management meds. I sure can see why people want to kill them-selves when they live with chronic pain. I am still waiting for furthertreatments and assessments. My sleep is always interrupted from ei-ther pain or flashbacks. I often think of the couple that died.

40 Colin and Lori Mandy were the occupants of the pickup truck whichwas pulling the 5th wheel trailer in front of the Hilderley vehicle. Thepickup driven by Ms. Noganosh struck the rear of the Mandy’s trailerafter striking the Grand Cherokee.

41 Lori Mandy writes:This accident has since caused me to have nightmares and has trig-gered what I thought was forgotten memories. . .I was almost killedin a head–on collision and those memories returned.

This accident on July 25th, 2015 has brought on bouts of unexplainedtears, anxiousness. . .I can’t sleep. To write this statement has beenextremely difficult. I am nervous when people tailgate and some-times will pull over to let the impatient people carry on.

This accident has caused this family financial stress as we had to payoff the loan for our trailer because it was written off by the insurancecompany. To many a trailer is just a trailer. But to my family it wasfull of memories. The destruction of our trailer took away our retire-ment. Took away well needed time to spend together with ourchildren.

42 Colin Mandy writes:The trailer we were pulling was partially purchased with funds left tous upon the deaths of my parents. I wanted something that my imme-diate family could use to remember my mother and father. But thishas been taken away from us.

. . .a big part of me also feels selfish about the loss of our trailer be-cause 2 lives were needlessly taken from their families. My heartgoes out to them. I am a confident and steady driver but after theaccident it took me months to get back to being confident again. ForLori, it has brought back very bad memories which only time willhopefully heal again.

Principles of sentencing:43 The fundamental objectives and principles of sentencing are stated in

the Criminal Code. They include denunciation, deterrence, the separation


of offenders from society where necessary, rehabilitation, the promotionof responsibility, and the recognition of harm done to victims of crime.They require the consideration of aggravating and mitigating circum-stances. They provide that an offender should not be deprived of libertyif less restrictive sanctions may be appropriate, and that all availablesanctions, other than imprisonment, which are reasonable in the circum-stances, and consistent with the harm done to the victims and the com-munity, should be considered for all offenders and in particular for Ab-original offenders.

44 Case law reveals that the paramount objectives in dangerous drivingcases are general and specific deterrence and denunciation. Althoughthese principles are regarded as paramount, the objective of rehabilitationis not to be ignored, and the principle that a sentence must be proportion-ate to the gravity of the offence remains an important consideration.

Mitigating and Aggravating Factors:45 Section 718.2 of the Criminal Code requires me to take into consider-

ation any relevant aggravating or mitigating circumstances relating tothese offences. In this case I find that there are a number of aggravatingfactors which it is incumbent on me to consider. These include thefollowing:

a) Ms. Noganosh was familiar with the risks associated with travel-ling this section of road, especially on a summer weekend. Shehad travelled this road on the way to her high school in ParrySound on a daily basis for many years, and on many other occa-sions thereafter.

b) Ms. Noganosh was travelling at a speed which exceeded theposted speed of 90 kilometres per hour.

c) There was no need for Ms. Noganosh to pass these camper trail-ers. The evidence is that they were travelling at approximately theposted speed limit.

d) Ms. Noganosh had the opportunity to pull back into the north-bound travelling lane after she passed the Hilderley vehi-cle. . .instead she chose to keep moving forward in the southboundpassing lane, notwithstanding the fact that her visibility was im-peded and the broken line between the lanes had become a solidline.


e) Ms. Noganosh was not alone. She was pregnant at the time and soshe was placing both her unborn baby and the two passengers inher vehicle at risk, as well as all of the drivers and occupants inthe other vehicles in the vicinity.

f) Ms. Noganosh made a deliberate and intentional decision to pass.

g) Ms. Noganosh’s actions resulted in multiple deaths and physicaland emotional injuries to a number of individuals.

46 I consider the following to be mitigating factors:

a) Ms. Noganosh has been described as a kind and caring mother toher children and daughter to her parents. Her stepfather is a doubleamputee and her mother lost one of her legs as well. They are verymuch dependent on her assistance.

b) Ms. Noganosh was a novice driver, and was under the mentorshipand guidance of the licenced driver seated next to her.

c) Ms. Noganosh has never been in trouble with the law before. Herlack of care on this occasion is inconsistent with the way in whichshe normally conducts herself.

d) When she initially pulled into the southbound passing lane Ms.Noganosh crossed a broken centre line and it would appear thatshe had the necessary visibility to pass the first Sierra pickup trucksafely. Her error in judgment occurred when she decided not topull back into the northbound lane in front of the Sierra, but in-stead she proceeded to advance in the passing lane even thoughher visibility was now impeded and the centre line had changed toa solid line. In the circumstances, her actions constituted a mo-mentary lapse in judgment.

e) There is no evidence that she was speeding or driving in a carelessmanner prior to the time she pulled into the southbound passinglane.

f) She has pleaded guilty to these offences, thereby sparing the vic-tims from having to attend what would have been a lengthy trial.

g) There is evidence in the Gladue report that Ms. Noganosh has ex-perienced remorse about her actions. Her sorrow and remorse wasconfirmed by her pastor, Pastor Bursma who spoke on her behalfat her sentencing.


Positions of Crown and Defence:47 The Crown submits that in the circumstances of this case a just and

proper sentence includes a custodial order of three and a half years or 42months. In addition Ms. Noganosh should receive a driving prohibitionof 5 years.

48 Crown counsel reminds the court that one of the main purposes ofsentencing in cases such as this is to deter other drivers from drivingdangerously and in a way that puts the public at risk. He reminded thecourt that the accident did not result from a momentary lapse of atten-tion, but resulted from a deliberate decision by Ms. Noganosh. He cites anumber of cases in support of his position that 42 months of incarcera-tion represents a fit and just sentence.

49 Counsel for Ms. Noganosh submits that considering all of the mitigat-ing factors which exist here any custodial disposition should be minimalin nature and the maximum with respect to probation. He agrees that adriving prohibition of any length in time is appropriate.

50 Counsel for Ms. Noganosh reviewed with the court a number of casesin which persons charged with driving offences received conditionalsentences. Although recent legislative changes prevent this court fromimposing a conditional sentence, counsel argues that a brief or suspendedsentence together with strict conditions would have the same effect as aconditional sentence.

Analysis of what constitutes a just and proper sentence in thecircumstances of this case

51 In my view, many of the cases cited by the Crown in support of hisposition can be distinguished from the facts in this case.

52 The Crown cites the 2003 decision of the Ontario Court of Appeal inR. v. Boukchev, [2003] O.J. No. 3944 (Ont. C.A.) in which the accusedwas convicted of dangerous driving which led to the death of a pedes-trian. Mr. Bouckchev was sentenced by the Court of Appeal to four yearsand three months of imprisonment, and his licence was suspended forlife. However, in that case, Mr. Boukchev had fled the scene of the acci-dent, initially denied that he was driving and maintained that his vehiclehad been stolen. He also had a lengthy criminal record of driving of-fences, including careless driving and seven convictions for drivingwhile suspended or disqualified, as well as a previous conviction for im-paired driving.


53 In R. v. Regier, [2011] O.J. No. 3749 (Ont. C.A.), another OntarioCourt of Appeal case relied on by the Crown, the Court of Appeal uphelda sentence of 6 years imprisonment on two counts of dangerous drivingcausing death and one count of dangerous driving causing bodily harm.In this case however the appellant had a lengthy driving record involving25 Highway Traffic Act convictions over a period of 28 years. In fact, hewas charged with careless driving in relation to another incident near theplace of this accident on the same highway within 2 years following theaccident in question.

54 In R. v. Rij, [1993] O.J. No. 4381 (Ont. Gen. Div.) the accused, whowas a professional driver with 17 years’ experience, was convicted ofdangerous driving causing death and dangerous driving causing bodilyharm and was sentenced to five years’ imprisonment. The court foundthat the accident was not a result of a momentary lapse or of inadvertentnegligence and the accused’s record indicated a considerable lack ofresponsibility.

55 In R. v. Hodder, [2012] N.J. No. 155 (N.L. Prov. Ct.), a decision ofthe Newfoundland and Labrador Court of Appeal, the accused was con-victed of dangerous driving causing bodily harm and dangerous drivingcausing death. The accused was speeding and there was evidence thatprior to the accident the deceased, who was a passenger in his vehicle,had told him to slow down. Mr. Hodder, who was only 20 years old atthe time of sentencing, had one prior Criminal Code conviction and adriving record which already contained three speeding offences. He wassentenced to 30 months imprisonment and given a five year drivingprohibition.

56 In R. v. Kippax the accused was convicted of dangerous driving caus-ing death and two counts of dangerous driving causing bodily harm. Al-though his vehicle was not directly involved in the accident, the courtfound that he was at fault. Mr. Kippax was sentenced to three years im-prisonment and was given a 10 year driving prohibition. The court notedthat post–crash he pretended that he was not involved. He showed littleremorse for the consequences of his driving. He had a criminal recordwhich included related driving offences and numerous recent speedingconvictions.

57 In R. v. Fitt, [2011] O.J. No. 1961 (Ont. C.J.) the accused pleadedguilty to one count of dangerous driving causing death and two counts ofdangerous driving causing bodily harm. Mr. Fitt had a record of 19 pro-vincial offence convictions for driving as well as three criminal convic-


tions. Mr. Fitt was sentenced to three years’ imprisonment and subject toa driving prohibition for the duration of his imprisonment and for thefollowing five years.

58 Finally, in R. v. Marona, [2010] A.J. No. 1048 (Alta. Q.B.) the ac-cused pleaded guilty to dangerous driving causing death and dangerousdriving causing bodily harm. The accused had a history of drug abuseand domestic abuse and a lengthy criminal record, including nine admin-istrative offences. He also had a long record of driving infractions andaccidents. The Alberta court of Queens Bench sentenced him to twoyears imprisonment and a seven year driving prohibition.

59 In concluding that Ms. Noganosh’s case can be distinguished fromthese cases I underscore the fact that Ms. Noganosh has pleaded guilty tothese offences, she was a novice driver who was under the tutelage of amore experienced driver, and she does not have a criminal record or arecord of driving offences. There is also evidence that she has suffered asignificant degree of remorse as a result of this incident and has attendedcounselling to help her deal with these issues.

60 Counsel for Ms. Noganosh cites the Ontario Court of Appeal decisionin R. v. Ryazanov, [2008] O.J. No. 3916 (Ont. C.A.). In this case the twoaccused who were in separate vehicles drove at more than twice thespeed limit for about a kilometre and a half on a busy thoroughfare, pass-ing each other and at times leaving little space between each other. Oneof the accused crashed into a taxi, killing the driver. The two accusedpleaded guilty to dangerous driving causing death. The two accused were18 years old at the time. They did not have criminal records and they hadpositive pre–sentence reports and had expressed remorse.

61 The trial judge imposed a conditional sentence of two years less aday, with house arrest for the first year and a curfew thereafter, followedby two years’ probation, plus a four year driving prohibition. The Attor-ney General appealed the sentence of the trial judge. The Court of Ap-peal found that the trial judge did not err in principle in imposing condi-tional sentences. However, the Court of Appeal did find that the trialjudge erred by failing to impose sufficiently punitive terms to the condi-tional sentence so as to reflect the principles of general deterrence anddenunciation. The court extended the house arrest condition to the fullterm of the sentence i.e. two years, and the driving prohibition was in-creased to seven years.

62 I note that counsel agree that conditional sentences of imprisonmentare no longer available for the offence of Dangerous Driving Causing


Death as a result of amendments to the Criminal Code that came intoeffect in December, 2007.

63 Counsel for Ms. Noganosh also refers the court to the decision in R.v. Carleton, 2012 MBPC 54 (Man. Prov. Ct.). In this case, Mr. Carletonwas driving to high school. As he approached a pedestrian corridor hewas driving in the left lane, next to the centre of the road. Overhead pe-destrian lights were flashing and the Crown agreed that Mr. Carleton didnot see these lights. There were cars stopped in the next two lanes to hisright. Mr. Carleton assumed that the cars in these lanes were stoppedbecause they were backed up waiting to turn into the busy Sobeys gro-cery store lot located nearby. In fact, these two lanes were stopped be-cause the deceased, Joanna Storm was crossing in the pedestrian corri-dor. Apparently, Mr. Carleton did not think or realize there was or couldbe a pedestrian in the corridor. Just as he drove into the corridor Ms.Storm stepped into the lane he occupied. She was struck by the right sideof his vehicle, causing serious injuries and she died later that day. Mr.Carleton pleaded guilty to dangerous driving and accepted full responsi-bility for the accident.

64 There was no evidence of speeding by Mr. Carleton or egregiousdriving at the time of the accident. Mr Carleton was 18 years old, a rela-tively inexperienced driver and operating under a graduated licensingscheme. He had no prior criminal record but highway traffic record fordriving 80 kilometres in a 60 kilometre zone.

65 At paragraphs 118 and 119 of the Carleton decision Justice M.J.Smith sentenced Mr. Carleton as follows:

118. I find that in this case a short period of incarceration followedby two years of supervised probation with a significant communityservice component is appropriate and proportional considering themoral blameworthiness of Carleton and the need for an element ofdeterrence in this sentence. The period of incarceration is 30 days.Although the period of incarceration is short, any period in a correc-tional institution is significant for a youthful first offender. Combin-ing incarceration with substantial community service will not onlyresult in a proportionate and deterrent sentence, but one which willserve restorative justice and rehabilitative ends.

119. I also prohibit Carleton from driving anywhere in Canada for 18months. I have considered the length of prohibition in other cases andhis youth and individual circumstances in coming to thisdetermination.


66 I note that the Carleton decision can be distinguished from the caseinvolving Ms. Noganosh since it appears that Mr. Carleton’s actions re-sulted from a momentary lack of attention on his part but Ms. Noga-nosh’s actions constituted a deliberate decision on her part.

67 In the Ontario Court of Appeal decision in R. v. L. (J.) (2000), 147C.C.C. (3d) 299 (Ont. C.A.) the Ontario Court of Appeal rejected thetrial judge’s conclusion that there was a set range of 3 to 7 or 8 years ofincarceration for the offence Criminal Negligence Causing Death. On thecontrary, the Appellate Court noted at para. 2 that:

The cases demonstrate that criminal negligence causing death can becommitted in so many different ways that it defies the range–settingexercise. The cases do not demonstrate a range, only a series of ex-amples that are driven by the almost infinite variety of circumstancesin which this offence can be committed. As counsel for the appellantsubmitted, cases can be found in the reformatory range and there areeven examples of suspended sentences.

68 In the same case, the Court of Appeal noted at para. 3 that sentencingfor the offence of criminal negligence causing death is “. . .very muchdriven by individual factors, especially the blameworthiness of the con-duct”. (emphasis added).

69 Although the comments by the court in the L. (J.) case were in refer-ence to the offence of Criminal Negligence causing Death, I believe thesame comments are applicable with respect to the offence of DangerousDriving Causing Death. . .sentencing is driven by individual factorsunique to each case.

70 In the Ontario Court of Appeal decision in R. v. Lam (2003), 180C.C.C. (3d) 127 (Ont. C.A.) the court attached a chart of recent casesinvolving sentencing for both the offence of Causing Death by CriminalNegligence and the offence of Dangerous Driving. For the former, thesentences ranged from suspended sentences and probation, to conditionalsentences, to reformatory terms of imprisonment and to varying terms ofpenitentiary sentences, the highest being eight years for a death involvingalcohol for an offender with several prior convictions for impaired driv-ing. For dangerous driving cases, the sentences ranged from suspendedsentences with probation, to more commonly, conditional sentences ofimprisonment to be served in the community ranging from 15 months to2 years less a day. As I have already noted, it is common ground thatconditional sentences of imprisonment are no longer available for thisoffence.


71 Quite clearly in my view, the establishment of a “range of sentences”for the offence of dangerous driving is inappropriate. Each sentence mustreflect the unique circumstances of the accused and the offence.

72 Finally, I note that it would be a mistake to postulate that generaldeterrence can only be effected by incarceration. In R. v. Leask, [1996]M.J. No. 586 (Man. C.A.) the Court of Appeal overturned a one yearprison sentence and imposed substantial fines and community service onthree young first offenders for assault causing bodily harm. The courtruled unanimously in par. 5 of the decision that:

5. The sentence must be a deterrent one, to discourage these youngmen and others from engaging in such callous behaviour, but a deter-rent sentence does not have to be an incarcetory one. A fine or orderof community service, accompanied by supervised probation, canhave a deterrent effect if substantial enough. . .

Conclusion73 In my view Ms. Noganosh’s moral culpability resulted from her fail-

ure to respond to the changing driving circumstances in which she wastravelling after she passed the first pick–up truck.

74 Sentencing is an individualized process. After giving careful consid-eration to the sentencing principles set out in the Criminal Code, includ-ing the goals of deterrence and rehabilitation, I have concluded that send-ing Ms. Noganosh to jail for three and a half years as suggested by theCrown would exceed her overall moral culpability. In coming to thisconclusion I have considered among many other factors the fact that sheis a person who has been raised in the relative security and social isola-tion of a First Nation environment. A period of incarceration of thislength in a Canadian penal institution would have a significant and detri-mental effect on her.

75 In coming to this conclusion that a sentence of three and half yearsexceeds what is fair and just, I have also considered the circumstances ofthe offence, Ms. Noganosh’s personal circumstances, the mitigating cir-cumstances and the absence of serious aggravating circumstances such asa period of negligent or careless pre–collision driving, of which there isno evidence.

76 With respect to the two offences of dangerous driving causing death Ihave decided to sentence Ms. Noganosh to a period of incarceration of12 months. For the purposes of the record, that is 12 months on count 4and 12 months concurrent on count 5. When I consider the consequences


of her actions, I acknowledge that a period of incarceration of this lengthis relatively short, but when combined with a substantial community ser-vice order I am of the view that this sentence will serve the principles ofrestorative justice and rehabilitative ends.

77 With respect to the offence of dangerous driving causing bodily harmI am sentencing her to 3 months of incarceration, to be served concur-rently with the other two offences.

78 With respect to the two offences of Dangerous Driving CausingDeath I am also imposing a period of probation of two years followingher release, which are to be concurrent, and I am prohibiting Ms. Noga-nosh from driving anywhere in Canada for five years. The terms of herprobation will include the following standard statutory conditions:

a) Keep the peace and be of good behaviour;

b) Appear before the court when required to do so by the court; and

c) Notify the court or the probation officer in advance of any changeof name or address.

79 In addition, Mr. Noganosh must:

a) Report to probation services,

(i) Within two working days after her release from custody;and

(ii) Thereafter, when required by her probation officer and inthe manner directed by her probation officer.

b) Perform 200 hours of community service over a period not ex-ceeding 24 months , as directed by her probation officer;

c) Attend, participate and complete counselling, as may be directedby her probation officer.

80 I am forced by government policy to impose a victim surcharge fineof $600. That is $200.00 for every indictable offence for which she isfound guilty. I have no idea how a person who is raising 4 children andwhose only source of income is ODSP can pay such a fine but I under-stand that the legislature provides me with no discretion and I must there-fore impose this fine. The legislation does permit me to give Ms. Noga-nosh time to pay and I am therefore giving her two years from the date ofher release to pay this amount.

Order accordingly.

Knabe v. Durham (Regional Municipality) 349

[Indexed as: Knabe v. Durham (Regional Municipality)]

Usha Knabe (Appellant) and Durham (Regional Municipality)(Respondent)

Ontario Court of Justice

Docket: None given.

2017 ONCJ 35

M.S. Felix J.



Motor vehicles –––– Offences and penalties — Offences — Driving of-fences — Speeding — Measurement device –––– Accused was convicted ofspeeding — Accused appealed — Appeal dismissed — Trial justice held cor-rectly that qualifications of investigating officer were not essential element ofoffence — Record before trial justice supported her factual finding that officerhad sufficient training and experience with particular device — Given that citedcase from out of province was not law in Ontario and there were no statutoryprerequisites to admission of evidence, there was no basis to interfere with trialjustice’s finding that officer was qualified to use device — Record presented totrial justice by officer was more than just reliance on usual practice — Devicewas tested prior to investigation concerning accused and numerous times af-ter — Record was sufficient to support finding that device was operating prop-erly at time accused was investigated — Trial justice limiting cross-examinationon colour of motor vehicle did not significantly impact trial — Officer providedsufficient testimony concerning posted speed limit for trial justice to be satisfiedconcerning that essential element.

Cases considered by M.S. Felix J.:

Baie-Comeau (Ville) c. D’Astous (1992), 74 C.C.C. (3d) 73, 49 Q.A.C. 99,[1992] R.J.Q. 1483, 9 M.V.R. (3d) 189, 1992 CarswellQue 109, [1992] Q.J.No. 475, 1992 CarswellQue 2124 (C.A. Que.) — considered

R. v. Bland (1974), 6 O.R. (2d) 54, 20 C.C.C. (2d) 332, 17 Crim. L.Q. 193, 1974CarswellOnt 571, [1974] O.J. No. 2139 (Ont. C.A.) — considered

R. v. Clark (1974), 3 O.R. (2d) 716, 18 C.C.C. (2d) 52, 1974 CarswellOnt 457,[1974] O.J. No. 1904 (Ont. C.A.) — considered

R. v. Gill (2003), 2003 CarswellOnt 4911, 46 M.V.R. (4th) 230, [2003] O.J. No.4761 (Ont. C.J.) — considered

R. v. He (March 5, 2003), Bellefontaine J., [2003] O.J. No. 2254 (Ont. C.J.) —considered


R. v. He (May 26, 2003), Doc. M29727, [2003] O.J. No. 2257 (Ont. C.A. [InChambers]) — referred to

R. v. Michaud (2015), 2015 ONCA 585, 2015 CarswellOnt 13209, [2015] O.J.No. 4540, 82 M.V.R. (6th) 171, 22 C.R. (7th) 246, 127 O.R. (3d) 81, 328C.C.C. (3d) 228, 339 O.A.C. 41, 341 C.R.R. (2d) 89 (Ont. C.A.) — referredto

R. v. Potts (1982), 36 O.R. (2d) 195, 66 C.C.C. (2d) 219, 14 M.V.R. 72, 26 C.R.(3d) 252, 134 D.L.R. (3d) 227, 1982 CarswellOnt 56, [1982] O.J. No. 3207(Ont. C.A.) — referred to

R. v. Potts (1982), 66 C.C.C. (2d) 219n, 134 D.L.R. (3d) 227n, [1982] 1 S.C.R.xi (note), [1982] S.C.C.A. No. 301, 43 N.R. 270 (S.C.C.) — referred to

R. v. Strati (2014), 2014 ONCJ 139, 2014 CarswellOnt 3624, [2014] O.J. No.1413 (Ont. C.J.) — considered

R. v. Vancrey (2000), 2000 CarswellOnt 2882, 147 C.C.C. (3d) 546, 5 M.V.R.(4th) 302, 135 O.A.C. 89, [2000] O.J. No. 3033 (Ont. C.A.) — considered

R. v. Volfson (2009), 2009 CarswellOnt 2654, 2009 ONCJ 227, [2009] O.J. No.1978 (Ont. C.J.) — considered

R. v. Williams (2008), 2008 CarswellOnt 1504, 69 M.V.R. (5th) 112, [2008] O.J.No. 1078 (Ont. C.J.) — considered

R. v. Xu (2012), 2012 ONCJ 278, 2012 CarswellOnt 5724, [2012] O.J. No. 2074,33 M.V.R. (6th) 293 (Ont. C.J.) — referred to


Highway Traffic Act, R.S.O. 1990, c. H.8Generally — referred tos. 128 — considereds. 138(1) — considered

Provincial Offences Act, R.S.O. 1990, c. P.33s. 135 — considereds. 136(2) — referred to

APPEAL by accused from conviction for speeding.

J. Bateman — ProsecutorR. Tatangelo, for Appellant

M.S. Felix J.:

I. Introduction1 On January 29, 2016 the appellant, Usha Knabe, was convicted by a

Justice of the Peace of speeding contrary to section 128 of the HighwayTraffic Act (Ontario) [Highway Traffic Act].

2 She appeals her conviction seeking an acquittal or a new trial.

Knabe v. Durham (Regional Municipality) M.S. Felix J. 351

3 The appellant submitted four arguments in support of the appeal.4 The central argument is that the evidence led concerning the testing

of the device used by the investigating police officer to measure speedwas deficient. The investigating officer’s inability to provide detailsabout the testing of the device, and her reliance on her “usual practice”,should have caused the trial justice to doubt the reliability of that evi-dence. That doubt should have been resolved in favour of the appellant.

5 The second argument is that the trial justice should not have reliedupon the evidence led in support of the investigating officer’s qualifica-tions to operate the speed measuring device used to “clock” the appel-lant’s motor vehicle.

6 The third argument is that the prosecution did not prove that the ap-pellant exceeded the posted speed limit.

7 Finally, the appellant cited the trial justice’s interference in the trialby limiting cross-examination as worthy of consideration by this Court.

II. Procedural Considerations8 The trial proceedings were commenced byway of “Part I” certificate.9 The appeal is governed by s.135 of the Provincial Offences Act (On-

tario) [Provincial Offences Act].10 The appeal is conducted byway of a review: See s. 136(2) Provincial

Offences Act. I must review the record and I may reach my own conclu-sion. I am not obligated to defer to the trial justice except for findings ofcredibility: R. v. Michaud, 2015 ONCA 585 (Ont. C.A.) paras 37, 45-49;R. v. Gill, [2003] O.J. No. 4761 (Ont. C.J.).

11 Notwithstanding Mr. Tatangelo’s articulate presentation of the ap-peal, the decision of the trial justice is affirmed pursuant to section138(1) of the Highway Traffic Act.

III. Testing of Devices Used to Measure Speed12 The central argument on this appeal is that the Crown failed to estab-

lish that the device used by the officer was tested properly. The appellantargues that the trial Justice should have had a doubt concerning the relia-bility and accuracy of the evidence concerning speed.

13 I do not agree.14 The essential elements of speeding contrary to section 128 of the

Highway Traffic Act are: (1) the date of the offence, (2) the jurisdictionwhere the offence was committed; (3) the posted speed limit; (4) identifi-


cation of the driver; and, (5) the rate of speed of the moving motor vehi-cle: R. v. Williams, [2008] O.J. No. 1078 (Ont. C.J.).

15 In many speeding trials the investigating police officer’s visual per-ception of excessive speed is bolstered by the use of a device that mea-sures the speed of moving motor vehicles.

16 The Highway Traffic Act does not set out statutory requirements con-cerning devices used to measure the speed of moving motor vehicles.

17 There is no proscribed schedule of “approved devices” mandated bythe Ontario Legislature.

18 There are no provisions governing the standard of training applicableto police. Nor are there statutory provisions concerning the maintenance,calibration, and use of the devices used to measure the speed of movingmotor vehicles.

19 The Quebec Court of Appeal has set out specific evidence that mustbe led by the prosecution to establish the officer’s training and testing ofthe speed measuring device: See Baie-Comeau (Ville) c. D’Astous(1992), 74 C.C.C. (3d) 73 (C.A. Que.).

20 While the Ontario Court of Appeal has not endorsed the granular spe-cifics outlined by the Quebec Court of Appeal, the Court has endorsed arequirement that there be some evidence concerning the reliability of thedevice used to measure speed. In R. v. Vancrey, [2000] O.J. No. 3033(Ont. C.A.), the Ontario Court of Appeal articulated this requirement asfollows:

21 The Crown seeks to uphold the conviction on the basis that therewas led at trial prima facie evidence of the accuracy and reliability ofthe particular laser unit, consisting of the performance of the manu-facturer’s tests for good working order both before and after the useof the device, together with the earlier verification of the accuracy ofthe laser unit for measuring the velocity of moving vehicles on ahighway, when compared with an accurate radar unit by a qualifiedlaser and radar operator.

22 In my view, the position of the Crown is correct. The court re-ceived evidence that the officer who operated the laser device wastrained and experienced and that he tested the device both before andafter its use in accordance with the manufacturer’s instructions to en-sure that it was operating properly on the date in question. The courtalso received evidence of the accuracy of the device for measuringthe speed of vehicles on a highway by comparing its readings withthose of an accurate radar unit. The radar test provides the indepen-


dent guarantee of the accuracy of the particular laser unit to measurethe speed of a moving vehicle. [Para 21 -22]

21 The trial justice received evidence from the only witness at trial —Police Constable Cornes. Police Constable Cornes testified to the follow-ing information concerning the device she possessed for measuring thespeed of moving motor vehicles:

1. It was a Genesis II Select Radar Device serial # GS18054;

2. It is a device used by the police to monitor or record the speed ofapproaching motor vehicles;

3. That she was a trained operator of the device; and,

4. That she could not remember the date, but she believed she hadbeen trained sometime in 2013 (prior to this offence) and she re-ceived a certificate memorializing this event.

22 With respect to the officer’s qualifications, I acknowledge that a morethorough recitation of those qualifications would be preferable. The of-ficer was seemingly ill-equipped to answer basic questions about herqualifications. She could not remember specifically when she receivedtraining concerning the device. She speculated that she received a certifi-cate memorializing her training but could not be specific. She did notknow if there were any re-qualification protocols required by the DurhamRegional Police Service.

23 The trial justice held, (correctly in my respectful view), that the quali-fications of the officer are not an essential element of the offence: See R.v. Xu, 2012 ONCJ 278 (Ont. C.J.). Notwithstanding the deficiencies inthe officer’s testimony, the trial justice clearly accepted that the officerwas qualified because her experience in using the particular device.

24 The record before the trial justice supports her factual finding that theinvestigating officer had sufficient training and experience with the par-ticular device: R. v. He, [2003] O.J. No. 2254 (Ont. C.J.) leave to appealref’d [2003] O.J. No. 2257 (Ont. C.A. [In Chambers]).

25 The reasons of the trial justice demonstrate her application of the lawin this regard.

26 Given Baiecome is not the law in Ontario and there are no statutoryprerequisites to the admission of the evidence there is no basis to inter-fere with the trial justice’s finding that the officer was qualified to usethe device. The issue is one of weight, not admissibility.


IV. Testing of the Device27 The trial justice received the following evidence from the investigat-

ing officer concerning the testing and proper functioning of the deviceshe possessed:

1. That the device was working properly on the day in question;

2. That she performed a function test on the device at the commence-ment of her shift at 12:00 noon as well as shortly after issuing theticket — both times the device was working properly;

3. That she was trained to perform the tests at the beginning of hershift and after each speeding-related offence;

4. That the testing was part of her daily routine;

5. That she made notes concerning her testing of the speed device;

6. That she tested the device pursuant to the manufacturersinstructions;

7. That the test time of 12:00 noon was specifically noted in hernotes;

8. That she did not specifically note the time of the test performedafter issuing the offence notice to the appellant;

9. That she did not know the name of the manufacturer of the device;

10. That she read the manufacturer’s instructions for the device whenshe was trained;

11. That she did not have any training subsequent to her initial train-ing and was not aware of any requalification protocols mandatedby the Durham Regional Police Service;

12. That one manufacturer’s test she performed was a comparison be-tween the speedometer in the cruiser and the radar device. Thistest was performed at 12:00 noon;

13. She did not recall the speed at which she performed this test.

14. The fact that this test was performed was not recorded in hernotes.

15. Notwithstanding the fact that the manufacturer instructions man-date testing the radar facing the rear of the cruiser and the front ofthe cruiser, the investigating officer only tested the front-facingradar because she does not use the rear-facing radar;

16. The investigating officer did not note the time she tested the de-vice at the completion of her shift;


17. Comparing the accuracy of her speedometer to the radar device issomething she does throughout her whole shift; and,

18. She performed a test of the accuracy of the device after every sin-gle speeding-related offence notice she issued that shift.

28 Once again, I agree with the appellant’s submissions that the investi-gating officer could have maintained better notes about the testing of thedevice. Better notes might have enabled her to provide more detail. Forexample, more detail about the comparison test between her speedometerand the device might have been available. While not litigated in the re-cord at trial, the manner in which notes are created and maintained elec-tronically may be a factor affecting officers and their ability to tracknotes across several different investigations. This is an issue that was notfulsomely addressed at trial so it is of no significance on this appeal.

29 It is true that the prosecution must be in a position to provide suffi-cient detail concerning the testing of the device. The prosecution reliesupon the investigating police officer to note this specific detail. To theextent this evidence is not noted, unavailable, or deficient, a trial justicemay not find that the device was accurate or reliable.

30 A number of cases address the phenomenon of a “usual practice” andwhether this circumstantial evidence addresses the reliability and accu-racy of the speed measuring device. The appellant argues that the investi-gating officer’s evidence in this case amounts to a reliance on her “usualpractice”.

31 I respectfully disagree.32 The record presented to the trial justice was more than just a reliance

on “usual practice”.33 The trial justice correctly held that the manufacturer’s instructions are

not statutory requirements: R. v. Volfson, [2009] O.J. No. 1978 (Ont.C.J.). The manufacturer’s manual was not made an exhibit so it is un-clear to this Court what is precisely “required” overall by the manufac-turer’s instructions. Based on the excerpts provided to the investigatingofficer there are no concerns worthy of interference.

34 Furthermore, I am not troubled by the officer’s failure to test the rear-facing speed detection function - a feature of the device that she does not,and did not use.

35 Really, the issue at trial concerned the weight to be placed upon theevidence received rather than its admissibility.


36 The crux of the matter is that the device was tested prior to the inves-tigation concerning the appellant. The device was also tested numeroustimes after the investigation concerning the appellant. The officer testi-fied that she essentially tested the device on each subsequent use. Whileshe could not provide the number of times she used it after the appellantthe fact remains that the device was working properly in her subjectiveview.

37 I find that the record was sufficient to support a finding that the de-vice was operating properly at the time the appellant was investigated.

V. Limiting Cross-examination38 The trial justice limited the cross-examination on the colour of the

motor vehicle.39 The officer did not have a notation in her notes of the colour of the

motor vehicle nor did she have an independent recollection of the colourof the motor vehicle.

40 I adopt the learned observations made by Justice P. Tetley in R. v.Strati, 2014 ONCJ 139 (Ont. C.J.) at paras. 11 - 22 on this issue. Cautionshould be exhibited in limiting cross-examination on a relevant issue.

41 That being said, considering the record as a whole, limiting cross-examination did not significantly impact the trial.

VI. Evidence of the Posted Speed Limit42 Neither party addressed the issue of judicial notice and posted speed

limit signs: See R. v. Potts (1982), 36 O.R. (2d) 195 (Ont. C.A.) applica-tion for leave to appeal dismissed [1982] S.C.C.A. No. 301 (S.C.C.); R.v. Bland, [1974] O.J. No. 2139 (Ont. C.A.); R. v. Clark, [1974] O.J. No.1904 (Ont. C.A.).

43 Leaving that issue aside I find that the investigating officer providedsufficient testimony concerning the posted speed limit for the trial justiceto be satisfied concerning that essential element.

44 The appeal is dismissed. The finding of the trial justice is affirmed.

Appeal dismissed.

MOTOR VEHICLE REPORTS - Thomson Reuters Canada

Documents

Transcript of MOTOR VEHICLE REPORTS - Thomson Reuters Canada