Ontario Superior Court throws out conviction for allegedly refusing a roadside demand

Not only is it an offence in Canada to drive while impaired or over the legal limit, it is also an offence, of equal consequence, to refuse to provide samples of your breath, even for screening purposes.

I was counsel at trial and on the appeal on an allegation of refusing a roadside demand.  The decision of Hebner, J. is found at R. v. Drouillard, 2018 ONSC 4295 (CanLII).  The case involved a roadside demand made when the driver was seated in her vehicle.  The entire demand process was recorded by a video camera worn by the police officer making the demand.  The officer felt that the subject was not making a genuine effort in any of the seven attempted blows and, for that reason, she was charged with a refusal.  Perhaps curiously, in this three-minute interaction, after the fourth try, she made a statement refusing to co-operate further.  She was however offered another opportunity which she accepted.

The trial judge found essentially that the offence was completed at that point.  The appeal court disagreed and determined that the whole exchange had to be seen as one transaction.  Justice Hebner ruled that, because there was no evidence about the machine itself, it would be difficult to conclude beyond a reasonable doubt that the subject was really refusing.

She was acquitted on the appeal.

Ontario's Civil Remedies survives another challenge and avoids another.

I was counsel in Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363 decided 2011-05-10, by Doherty J.A. of the Court of Appeal for Ontario.  Watt and Epstein JJ.A. agreed with his reasons.

Consistent with the decision in Chatterjee v. Ontario (Attorney General), 2009 SCC 19, the court upheld a challenge to the provisions of the Ontario Civil Remedies Act, 2001, but allowed a narrow discretion for relief from forfeiture.  Interestingly, the court agreed with the Attorney General's assertion that mortgage payments derived from illegal activities tainted the entire property.  Therefore, the properties were proceeds.  That was sufficient to uphold the decisions below, without dealing with the challenge to Part III of the Act regarding instruments.

Long probation terms

The maximum probation term in Canada is three years.  Not everyone is entitled to probation.  Thus, if an individual receives a sentence of more than two years in jail, probation cannot--I repeat cannot--be part of the sentence.  Thus probation is actually a sentencing option theoretically reserved for less serious offenses, the idea being that for certain offenders, both society and the offender benefit from a suspended sentence or a shorter term in prison, coupled with the appropriate period of probation. 

The length of a probation term is still not something that should be decided lightly.  Sometimes, but I will say, not that frequently, a prosecutor will demand the term of probation be for the maximum period and defence counsel do not complain about the proposed term.  However, unless there is rehabilitative purpose to the length of the term, the length of term should not be longer for a purpose other than for rehabilitation.  This principle may be drawn from the case of R. v. Ziatas (1973), 13 C.C.C. (2d) 287 (Ont. C.A.).  The point was a little different as it concerned a probation condition not the length of the term.  There, the condition not to drive a vehicle was considered purely punitive, not rehabilitative.  However, by the same principle, the length of the term should be based on consideration that are not strictly punitive.

Today, the Court of Appeal for Ontario in R. v. Blais, 2011 ONCA 133 (CanLII) 2011-02-16, made this statement that actually is helpful in instances where the prosecution seeks a lengthy probation term, in the absense of a significant criminal history:

[2] In the light of the appellant’s extensive record, and the rehabilitative objective of a probation order, a three-year term is appropriate. At the sentencing hearing, the appellant expressed his intent to turn his life around. We view the probation order as promoting his ability to do so.

Almost a Year of Sentencing Truth

It seems difficulty to get away from thinking about the problems in the recent Truth in Sentencing Act, Bill C-25, legislation. The anniverary of the implementation of that legislation is coming up on February 22.


The important provisions are the amended portions of s. 719:

Determination of sentence


(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.


Exception


(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).


Reasons


(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.


Record of proceedings


(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed. 

It appears judges have accepted that credit on only a 1:1 proportion is the standard and enhanced credit is only available in exceptional circumstances. The new 1:1 is now the old 2:1 and current thinking appears to be along the lines that any enhancement must be justified in the same manner as "better than 2:1" was allowed before. 

Respectfully, this is not the correct approach because, while Parliament has fixed the norm at 1:1, Parliament did not declare that enhanced credit be limited to extraordinary circumstances.  In fact, nothing prevents the exception from applying in even the majority of cases.  Parliament only declared enhanced credit is available "if the circumstances justify it."  The requirement does not have to be a difficult standard to meet, nor is there any special evidence that is necessary. Appropriate submissions should be enough.

The problem with the former system is that the public perceived that prisoners were deliberately delaying trials and pleas to get the benefit of enhanced credit.  While there is no doubt this happened, the current preference for limited credit for pretrial custody puts many prisoners at a disadvantage. This is simply not fair.  Therefore, offenders who do not delay in having their matters heard in court can be said to come under the category of cases where "the circumstances justify it."

A recent case in the Court of Appeal for Ontario, supports these arguments.  See R. v. Monje, 2011 ONCA 1 (CanLII) 2011-01-04, sitting Laskin, Armstrong and LaForme JJ.A.  The author of the decision is H.S. LaForme J.A.  Although decided for a matter before the Truth in Sentencing regime, this case is extremely important because it recognizes that the question of parol eligility is a factor in the giving appropriate credit for time-served.   I have argued the point that the old 2:0 credit system is not the new 1:0 credit, that 1.5 credit is justified in many, if not most, instances because it is more reflective of the actual sentence an offender should serve.

[25] In conclusion, the appeal judge is in error by treating the court’s jurisdiction over post-sentence custody as being the same as that over pre-sentence custody.  He failed to appreciate and consider that the pre-sentence custody served by the appellant does not count towards his eligibility for parole or statutory release. In other words, he failed to take into account a relevant consideration in assessing credit for the appellant’s pre-sentence custody. This constitutes an error in principle and the sentence imposed by the appeal judge is not entitled to deference. 

We will remember the Court of Appeal for Ontario, even before the enactment of this legislation, was of the view that prisoners who were likely to serve their entire sentence should not be getting enhanced credit. Therefore, as long as an offender is likely to earn remission after sentence and has not delayed proceedings unnecessarily, he or she should be entitled to 1.5:1 credit before. Of course, this still leaves open other grounds for consideration.  There is but another circumstance that justifies enhanced credit. It is where an offender has gone to trial and ended up being found guilty, but to a lesser degree of culpability than originally alleged, for instance, by being found guilty of fewer charges, or in less aggravating circumstances. In such a situation, the proof is in the pudding. Thus, an offender should not be punished for exercising his or her right to a trial and for that reason, the benefit of an enhanced credit might also be given to an offender who is still found guilty, but who clearly demonstrate that his or her defence had merit.

Charter Values, Charter Remedies

It was all over the news that on October 13, 2010, the Court of Appeal for Ontario declared that a lower court judge was in error in ordering a woman to remove a facial cover, a niqab, at a preliminary hearing.  The case is called R. v. N.S and pitted the interest of the witness's right to religious freedom against an accused right to a fair trial.  The result was not surprising and will no doubt be embraced by a large majority of both the public and the legal community.

The court decided that the preliminary hearing judge should have conducted an inquiry into whether the witness should have been allowed to testify in the manner she desired.  This meant too that she should have told of her right and afforded the opportunity to consult her own counsel. 
The court noted a "quandary faced by the preliminary inquiry judge":

• [47]          . . .  Both M---d.S. [the accused] and N.S. [the witness] have powerful claims that seem to lead to diametrically opposed conclusions.  At least at first blush, it would appear that the constitutional values in issue collide.  Faced with an apparent collision of constitutional values, a court must first attempt to reconcile the rights so that each is given full force and effect within the relevant context..
• [48]          Reconciliation of apparently conflicting rights requires that no Charter right be treated as absolute and that no one right be regarded as inherently superior to another:  R. v. Mills, [1999] 3 S.C.R. 668, at para. 61; Dagenais, at p. 877; R. v. Crawford, [1995] 1 S.C.R. 858, at para. 34.  Nor can the reconciliation of competing rights be addressed in the abstract without regard to the specific factual context...

The interesting aspect of the case the I wish to focus on is not the decision itself, but what court said about the Charter.  What was interesting was that the process for getting the matter heard was generated by what is commonly called an application for a Charter remedy.  The court simply said this was not necessary.  While a discrete application is often the only way to get relief, frequently invoking the Charter separately it is not necessary.  In this instance, the decision about whether the witness could testify in the manner she proposed was a decision that was part of the judge's responsibility in controlling the proceedings before him or her.  In a fundamental way, it was no different from the decision to allow a witness to wear sunglasses.  The comparison was the appeal court's way of illustrating the question.  In the sunglass situation, the witness might have a medical reason for having them.  On the other hand, the glasses might be a mere fashion statement and therefore allowing the witness that privlege might effect the fairness of the trial.
The simple fact is that the mere invocation of the Charter is not necessarily a request for a Charter remedy.  In many instances, it is simply a matter of applying Charter principles to the interpretation of a statue or rule and there is no need for special notice to the other party.

Anyone who has done one or two of these applications can make a career out of doing applications for others

From other lawyers, I have recently heard unfavourable comments about organizations who promote themselves as expert in obtaining pardons.  At least one organization now offers, for an increased fee, an expedited service.  The simple fact is that a pardon application requires three basic processes.  Each must be completed correctly, else the whole process will be delayed.  The first is obtaining certified copies of the court charges, the second is a CPIC records check and the third is completion of the application form. 
In my recent blog about amendments to the Criminal Records Act, I commented about "anyone who has done one or two of these applications can make a career out of doing applications for others. This is evident in the significant growth of organizations that offer pardon removal services."

I don't know about who is following my blog, but after posting that entry, some woman with a toll-free number called me in response asking if I was interested in her doing a guest column.  I didn't bother calling back because I was pretty sure the guest column was going to be a promotion for some not-for-profit pardons organization. (The 'not for profit' claim is probably misleading because, no doubt, the person who runs the deal pays himself or herself a salary based the organizations net profit.)

Last Year's Legal Aid Job Action: Are we any better off?

In the myth of Cumaean Sibyl, she asks Apollo for as many years as grains of sand in her hand. She is said to have lived for a thousand years while Apollo let her face and body waste away.  Of course, her mistake was she forgot to ask for eternal youth.

I was reminded of this story recently looking back at the Ontario criminal lawyers job action last year.  We withheld services in legal aid matters in key areas, particularly murder prosecutions.  The government ended up negotiating a deal with us.  Here we were, a bunch of smart lawyers, who to boot had hired another bunch of smarter labour lawyers, to obtain, in theory, a better delivery of legal aid services to the public, and more money for legal aid lawyers.  With some reservations, I wrote in an earlier blog, that I thought the deal looked pretty good.

The result was a pay increase across the board, spread out over five years, together with some kind of understanding to create a mechanism for reviewing the rate in the future. This all looked pretty good at the time. The problem was there was no committment from the government to fund these increases. It was not like we weren't aware of the funding issue because, just about the time our job action started, we complained about the inadequacy of the '$150,000,000' of additional money promised by the Ontario government.
 
All this left Legal Aid Ontario (LAO) with the task of paying out the same money in a different way.  LAO had already begun doing this in one way, and that was this:  If a legal aid applicant is not facing a jail sentence, he or she is not entitled to legal aid.  However, the process for making that determination should be static, not dynamic:  It should be based on the correct constitutional approach that does not vary with budge constraints.  Nonetheless, LAO embarked on a plan that has seen far more refusals based on that question than anytme before.  Thus, persons who were routinely granted certicates are no longer getting those certificates, leaving many more individuals unrepresented or being aided pro bono.  This was not the only change in the operation of the plan. 
 
One other has been in the reduction of discretionary allowances.  The plan has built-in tariff limits.  No kind of service is exempt.  A lawyer is expected to devote a controlled number of hours on any particular case.  For instance, the tariff limit on a summary guilty plea is six hours, including all court appearances and preparation time.  For the most serious matters, the preparation time is limited to 15 hours, but more preparation time is available depending on the number of days in court, and other tariff enhancements, including actual court time.  These can substantially increase the maximum tariff for any particular case.  For even experienced lawyers, it is not uncommon for the time expended to exceed the tariff maximum.  In my own practice, I would guess that in about 1/3 or my legal cases I spend more time than the tariff allows.  Often, it is only one to three hours, but it can be substantially more.  From my experience, and the experience of other lawyers I know or have heard from, these allowances have been practically routine.  However, this is the case no more.  On this change, I cannot yet speak from actual experience, as it appears this practice has only developed in the past few months since after the first increase took effect on February 1, 2010.  The fact is I am still waiting to have several discretionary requests processed.

Other changes also have impacted on keeping lawyer incomes down.  One little measure has been the practice of extending the period in which current certificates can be amended.  This period was previously five months.  Now it is up to a year.  This means that new matters are paid at the rate when the certificate was issued, not when it is amended. 

I hear that our association is trying to resolve these problems with the Attorney General.  This is something else for us to wait and see about.