Citation: R. v. R.C. (P.) Date: PESCTD 22 Docket: GSC Registry: Charlottetown

Transcription

1 Citation: R. v. R.C. (P.) Date: PESCTD 22 Docket: GSC Registry: Charlottetown BETWEEN: AND: PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION HER MAJESTY THE QUEEN R.C. (P.) APPELLANT RESPONDENT Before: The Honourable Mr. Justice J. Armand DesRoches Darrell E. Coombs Respondent Solicitor for the Appellant Present - not represented Place and Date of Hearing Place and Date of Decision Charlottetown, Prince Edward Island February 8, 2000 Charlottetown, Prince Edward Island March 8, 2000

2 Citation: R. v. R.C. (P.) 2000 PESCTD 22 BETWEEN: AND: HER MAJESTY THE QUEEN R.C. (P.) GSC APPELLANT RESPONDENT Prince Edward Island Supreme Court - Trial Division Before: DesRoches, J. Date Heard: February 8, 2000 Date of Decision: March 8, 2000 [4 pages] CONSTITUTIONAL LAW - Charter of Rights and Freedoms. The Court allowed the Crown s appeal of a stay of proceedings imposed by the Provincial Court judge holding that the respondent s rights under s. 7 of the Charter of Rights and Freedoms had not been infringed. MOTOR VEHICLES - Young Offender. The Court held the ss. 11 and 56 of the federal Young Offenders Act were not applicable to the trial of a young offender charged for contravening the provincial Highway Traffic Act. Cases Considered: Chromiak v. R., [1980] 1 S.C.R. 471; R. v. Therens (1985), C.C.C. (3d) 481 (S.C.C.); R. v. Grafe (1987), 36 C.C.C. (3d) 267(Ont. C.A.); R. v. Lenihan, [1997] N.S.J. No. 93 (N.S.C.A.); Re Regina and S (1986), 26 C.C.C. (3d) 30 (Alta. Q.B.) Statutes Considered: Highway Traffic Act, R.S.P.E.I. 1988, Cap. H-5, s. 127(2)(a); Charter of Rights and Freedoms, ss. 7, 10, 24(2); Young Offenders Act, R.S.C. 1985, c. Y-1, ss. 2, 11, 56; Young Offenders (P.E.I.) Act, R.S.P.E.I. 1988, Cap. Y-1. Text Considered: R.E. Salhany, Canadian Criminal Procedure (5th ed.)

3 Darrell Coombs, solicitor on behalf of the Crown Respondent, present - not represented

4 DesRoches J.: THE FACTS [1] The respondent was charged with operating a motor vehicle with excessive noise or squealing tires, contrary to s. 127(2)(a) of the Highway Traffic Act, R.S.P.E.I. 1988, Cap. H-5. The Crown attempted to enter into evidence a statement made by the accused wherein he admitted upon police questioning that he was the driver of the vehicle at the material time of the incident. A question arose at the trial before the Provincial Court judge as to whether or not the respondent had been forewarned before police questioning that charges might be laid against him in connection with the incident. The learned Provincial Court judge indicated her understanding that the respondent had not been properly forewarned, and subsequently excluded the incriminating statement on the basis that the accused s rights against selfincrimination as guaranteed by s. 7 of the Charter of Rights and Freedoms had been infringed. The Court referred to s. 24(2) of the Charter as a basis for excluding the evidence. [2] The Crown appeals, submitting that the learned Provincial Court judge erred in her interpretation of the record. Specifically, the Crown points to the testimony of Constable O Shaugnessy, who stated on direct examination that she had advised the accused before questioning that he might be charged with an offence. [3] Moreover, the Crown submits that at no time during police questioning was the respondent detained in the legal sense of the word, and therefore the Crown contends that the preliminary question of a possible violation of the Charter s. 10 right to retain and instruct counsel is not a relevant consideration in this matter. [4] As an overarching proposition, the Crown submits that consideration of s. 10(b) of the Charter is irrelevant given the present context, since the matter at hand pertains to an offence created and governed by a provincial regulatory enactment. The Crown observes that the offence at issue was not created under the Criminal Code, nor does it import serious legal consequences if the accused is found guilty. As such, the Crown argues that it does not engage the constitutional protections for an accused that are provided under s. 10(b) of the Charter of Rights and Freedoms. [5] Alternatively, the Crown submits that even if there was a technical

5 Page: 2 breach of a s. 10(b) right, the breach was not of a serious nature, owing to the minimal legal consequences arising from conviction under a provincial regulatory scheme. [6] The respondent was a youth at the time of the incident. However, due to a procedural oversight, the respondent was not tried in Youth Court. It should be noted that the Crown has waived further proceedings against the respondent, and merely seeks clarification regarding the points of law raised on this appeal. Therefore no legal consequence against the respondent will ensue from this appeal. [7] Upon reviewing the transcript of trial proceedings, I conclude the police did in fact properly forewarn the respondent that there was a possibility of a charge being laid against him. The warning was communicated to the respondent before any further information was solicited from him. The transcript of the trial proceeding at p.12, lines 25-30, contains the following testimony by Constable O Shaughnessy:...[I] had indicated to him [the accused] that I would be visiting his residence some minutes later. I was in the Town of Stratford at the time, and I had indicated that he would be looking at being charged with this offence. [8] Therefore there was no infringement of the accused s right to liberty under s.7 of the Charter, and the statement by the accused need not have been excluded under s. 24(2) on that basis. [9] I further conclude there is no viable s. 10 Charter argument in this matter, since the respondent was not detained in a manner that would attract the protection afforded under s. 10(b). The circumstances surrounding the questioning of the accused in the present case did not involve an element of physical restraint that would constitute detention [see Chromiak v. R., [1980] 1 S.C.R. 471 at p.478]. Likewise, I am satisfied there was not present an element of psychological restraint, as defined by LeDain J. in R. v. Therens (1985), C.C.C. (3d) 481 (S.C.C.) at 505, that would be required in order to properly invoke s. 10 of the Charter. In R.E. Salhany s text on Canadian Criminal Procedure (5th ed.) the learned author quotes at p. 41 from the judgment of the Ontario Court of Appeal in R. v. Grafe (1987), 36 C.C.C. (3d) 267: Not every contact, however, between a police officer and a citizen will

6 Page: 3 constitute a psychological restraint which amounts to a detention. In Grafe, Krever J.A. was quick to stress that the Charter does not seek to insulate all members of society from all contact with constituted authority, no matter how trivial. [10] I conclude there was no evidence of a violation of s. 10(b) of the Charter in the present case. [11] The nature of the offence in the instant case falls distinctly under the purview of a provincial regulatory scheme. It is not a true crime and it is not contained within the federal Criminal Code. There is persuasive authority in support of the argument advanced by the Crown that such regulatory offences created under provincial statutory regimes should not be guided by the same constitutional considerations which surround Criminal Code offences. For example, in R. v. Lenihan, [1997] N.S.J. No.93 (N.S.C.A.) Hallett J.A. follows the ratio of the Supreme Court of Canada in R. v. Fitzpatrick when he observes at paragraph 34: The [Supreme Court of Canada] in R. v. Fitzpatrick made a statement that is particularly appropriate to the questions raised on this appeal. The Court stated at p.164: The principle against self-incrimination was never intended to assist individuals in committing regulatory offences, and should not be extended to protect the appellant from prosecution in the present case. The foregoing general observation was made in connection with the requirement for mandatory reports of fish landings for all persons participating in the commercial fishery...the observation does not derogate from the general statement that the principle against selfincrimination was never intended to assist persons in committing regulatory offences. I note, however, that it is not necessary to decide this issue on this appeal, and I decline to do so. [12] In a related vein, the question was raised by the Crown whether or not s. 11 and s. 56 of the federal Young Offenders Act, R.S.C. 1985, c. Y-1 are applicable in the context of a prosecution under the Young Offenders (P.E.I.) Act, R.S.P.E.I. 1988, Cap. Y-1 where the offence involved is an offence created under provincial enactment. The essence of the provisions contained in s. 11 and s. 56 of the federal Young Offenders Act are directed at an accused s right

7 Page: 4 to retain counsel upon arrest or detention and the admissibility of evidence, respectively. Both provisions are grounded in the protections for the rights of an accused provided by the Charter. [13] However, it is clear these provisions are limited to proceedings under that Act. Furthermore, as a result of the definition of offence in s. 2, the Act deals only with federal offences other than ordinances of the Northwest and Yukon Territories and, therefore, its provisions have no application to a proceeding instituted strictly under a provincial enactment. The Young Offenders (P.E.I.) Act, supra, provides a procedural scheme for proceedings in respect of offences committed by young persons. Its application is limited to offences against an Act of the Legislature of the province or a regulation, by-law or other instrument having the force of law in the province. It does not contain any specific reference to the Charter nor does it create any separate right to retain and instruct counsel. [14] Based on a textual analysis of the foregoing, it is reasonable to infer that there is a clear separation regarding the application of the federal Young Offenders Act and its provincial counterpart. As Moore C.J. indicated in Re Regina and S (1986), 26 C.C.C. (3d) 30, at p. 35:...The federal and provincial statutory regimes govern distinct offences. For these reasons, I would conclude that s. 11 and s. 56 of the federal Young Offenders Act are not applicable in the context of the case at bar. [15] For all of the above reasons, the appeal is allowed and a new trial is ordered. In view of the waiver by the Crown of further proceedings against the respondent, I anticipate no new trial will be conducted. March 8, 2000 J.