PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: R v. MacDonald 2007 PESCTD 29 Date: 20070820 Docket: S1 GC-556 Registry: Charlottetown Between Her Majesty the Queen Against Gerard Joseph MacDonald Appellant Respondent BEFORE: The Honourable Justice Benjamin B. Taylor Appearances Valerie Moore, for the appellant John K. Mitchell, QC, for the respondent Place and date of hearing - Charlottetown, Prince Edward Island February 22, 2007 Place and date of judgment - Charlottetown, Prince Edward Island August 20, 2007
Citation: R v. MacDonald 2007 PESCTD 29 S1-GC- 556 Between And Her Majesty the Queen Gerard Joseph MacDonald Appellant Respondent Prince Edward Island Supreme Court - Trial Division Before: Taylor J. Heard: February 22, 2007 Judgment: August 20, 2007 [8 pages] Constitutional Law Charter of Rights fundamental justice duty to disclose - remedies - Canadian Charter of Rights and Freedoms s. 7 arbitrary detention or imprisonment Canadian Charter of Rights and Freedoms s. 9 spot check of vehicle for license, insurance and registration Highway Traffic Act, R.S.P.E.I. 1988 Cap H-5 s. 253 impaired driving ss. 253(a), 253(b) Cased referred to: (R v. Ladouceur [1990] 1 SCR 1257 (SCC) and R. v. Simpson (1993), 79 CCC (3d) 482 (Ont. C.A.); R. v. Griffin (1996), 111 CCC (3d) 490 (Nfld C.A.); Hufsky v R. (1988) 40 CCC (3d) 390 (SCC); R v McKenna [1996] PEIJ No. 106 (PEISC-AD); R. v. O Connor (1995), 103 CCC 1 (SCC); R v Dixon (1998) SCJ No. 17); R v. Balaberde, February 28, 2003, Sask Prov. Ct. R. v. Aitken (1995), 129 Sask R. 66 (Sask Prov. Ct.), upheld on appeal: (1995) 138 Sask R. 187 (Sask QB); R v Duke [1995] NBJ No. 132 (NBCA); R v. Saunders [1996] NBJ No. 332 (NBQB); R v. Donaldsen [2006] SJ No. 351 (Sask QB) Statutes Cited: Highway Traffic Act, R.S.P.E.I. 1988 Cap. H-5 Valerie Moore, for the appellant John K. Mitchell, Q.C. for the respondent
Taylor J.: [1] This is a Crown appeal from the July 7, 2006 Provincial Court decision staying impaired driving charges against the respondent, Gerard Joseph MacDonald (Mr. MacDonald or the defendant ). Mr. MacDonald moved for the stay claiming he had not received full disclosure, and asserting a stay was the only possible remedy under the circumstances. The Provincial Court judge agreed. For the reasons set out below, I conclude the Crown s failure to disclose was not fatal to the Court s ability to conduct a fair trial under the circumstances in which the disclosure problem came to light, and this was not a case where a stay had to be granted to remedy prejudice to the accused: an adjournment and further disclosure would have been the appropriate remedy. History [2] I begin by setting out the circumstances under which Mr. MacDonald was charged. The facts are according to Cst. Dawson s testimony given at the voir dire. [3] On Sunday, April 9, 2006 Cst. John Dawson (Cst. Dawson), a member of the RCMP, was driving a police car on patrol in Queens County, Prince Edward Island. Cst. Dawson was accompanied by a civilian ride-along who had plans to join the RCMP and was with Cst. Dawson to get an idea what police patrol work was like. At about 2:15 a.m. Cst. Dawson drove east from Charlottetown across the Hillsborough Bridge on the Trans Canada Highway and entered the municipality of Stratford. There is a small retail mall to the left of the Trans Canada Highway as drivers come off the bridge and enter Stratford. The mall consists of a liquor store, a pizza restaurant, a bar or lounge, a grocery store, a movie rental outlet, an insurance agency, perhaps one or more other retail outlets, and a parking lot. The parking lot is bounded on the south by the Trans Canada Highway and on the east by the Hopeton Road. [4] Cst. Dawson saw a truck moving in the parking lot. He had it in his mind he would like to show the ride-along a roadside check for driver's license, registration and insurance. He entered the parking lot and followed the truck. The truck turned right to go south on the Hopeton Road. The truck crossed the Trans Canada Highway, at which point the Hopeton Road turns into the Stratford Road. Cst. Dawson observed there appeared to be only one occupant in the truck. The truck continued south along the Stratford Road, going only 35-40 km/h in a 50/km zone. Cst. Dawson activated the emergency lights to signal the truck driver to stop. The truck took a long time to pull over. When the truck did stop, Cst. Dawson stopped his patrol car behind the truck, then walked to the driver's side window of the truck. Cst. Dawson asked the driver for his license, registration and insurance. Cst. Dawson determined the driver was Mr. MacDonald; he noticed a strong smell of alcohol coming from Mr. MacDonald and his breath. He observed Mr. MacDonald's eyes were red and glassy, his face was flushed and his speech was slurred. Cst. Dawson asked Mr. MacDonald to step out of the truck and walk towards the police car. Mr. MacDonald got out slowly and staggered slightly.
Page: 2 Cst. Dawson then gave Mr. MacDonald a breathalyzer demand. [5] The voir dire evidence stopped at the point when Cst. Dawson made a breathalyzer demand, because the voir dire was concerned with whether Mr. MacDonald s s. 9 Charter rights had been breached: everyone has the right not to be arbitrarily detained or imprisoned. There is no evidence of what happened next, because there was no evidence of any kind given at the trial: the trial proper never commenced. However, from the Information I conclude Mr. MacDonald was arrested and taken to the police station where he failed the breathalyzer test and was charged with driving a vehicle while impaired and operating a vehicle with a blood alcohol content over 80" under ss. 253(a) and 253(b) of the Criminal Code of Canada. [6] Mr. MacDonald signed a promise to appear in court on May 29, 2006, and retained a lawyer who wrote to the Crown Attorney's Office on May 10, 2006 requesting Crown disclosure. Subsequently, Mr. MacDonald changed attorneys, retaining Mr. Mitchell, Q.C. I gather Mr. Mitchell received the Crown disclosure from the previous lawyer and arranged a new date for plea. [7] On June 19, 2006, Mr. MacDonald appeared in Provincial Court in Charlottetown represented by Mr. Mitchell. Mr. MacDonald pled not guilty to the charges and the matter was set for July 7, 2006 at 9:00 a.m. for trial. [8] By letter dated June 23, 2006, Mr. Mitchell wrote to the Crown. The letter stated, in part: Please be advised that we will be making a Charter Motion on this matter alleging that there were no reasonable and probable grounds for stopping our client and thus, his Charter rights to be free from unreasonable search and seizure are breached. We will be relying on cases such as R. v. Ladouceur, [1990] 1 S.C.R. 1257 (S.C.C.), R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), R. v. Griffin (1996) 111 C.C.C. (3d) 490 (N.F.L.D. C.A.) and others. [9] The letter was confusing. The phrase unreasonable search and seizure comes from section 8 of the Charter; while the phrase no reasonable and probable grounds for stopping our client seems to refer to section 9 of the Charter. Of the three cases cited, two deal with both sections 8 and 9 (R v. Ladouceur [1990] 1 S.C.R. 1257 (SCC) and R. v. Simpson (1993), 79 CCC (3d) 482 (Ont. C.A.)) while the third, R. v. Griffin (1996), 111 CCC (3d) 490 (Nfld C.A.) deals with section 9 but not section 8. [10] Although the letter was confusing, the Crown was able to figure things out, and
Page: 3 came to the trial prepared for a section 9 challenge. The Court received no notice of the challenge. [11] On July 7, 2006, the case was called for trial, but defence counsel asked to immediately enter into a Section 9 Charter voir dire to determine whether Mr. MacDonald s Charter right not to be arbitrarily detained or imprisoned had been breached. [12] Argument followed over whether the defence had given a defective notice of the Charter issue to be raised and then over whether defence counsel could call the arresting constable as a witness and then cross-examine him. The Court ruled the voir dire would proceed, but defence could not cross-examine the constable after calling him as a witness. Then the evidence on the voir dire commenced. The argument which followed the voir dire evidence dealt partly with insufficient grounds to make the stop, partly with the right to stop under s. 253 of the Highway Traffic Act R.S.P.E.I. 1988 Cap H-5, and partly with lack of prior disclosure of reliance by the constable on section 253. [13] No decision was given on the voir dire. Instead, after Cst. Dawson gave evidence and counsel made submissions, the court recessed until the afternoon. When court reconvened, defence moved for a stay because of non-disclosure of evidence, specifically, the existence of the ride-along, and the Cst. Dawson s reliance on s. 253 of the Highway Traffic Act as one of his reasons to stop the defendant. [14] Section 253 of the Highway Traffic Act states in part: 253.(1) A peace officer, in the lawful execution of his or her duties and responsibilities, (a) may require the driver of a motor vehicle to stop;... (c) may require the driver of a motor vehicle, on request, to produce for inspection his or her driver s license and the reigstration permit for the vehicle;... (2) The driver of a motor vehicle when signalled or requested to stop by a peace officer shall immediately come to a safe stop. (3) The driver of a motor vehicle, on request by a peace officer shall produce for inspection his or her driver s license and that registration permit for the vehicle. 2003, c. 39, s. 4; 2006, c. 8, s. 4.
Page: 4 [15] After argument on the motion, the Provincial Court judge found the Crown had failed to make full disclosure, and found the only appropriate remedy was to stay the charges against the defendant. The Appeal [16] The Crown has cited 13 grounds of appeal. Many of the grounds deal with alleged procedural irregularities or shortcuts. In my view, most of these were not determinative or even telling. What decided the case was; a) the learned trial judge found there were two failures to disclose (1) failure to disclose the ride-along and 2) failure to cite s. 253 of the Highway Traffic Act as a reason for stopping the Macdonald vehicle; and b) having found two failures to disclose, the learned trial judge found the only remedy was to stay the charges. Disclosure [17] There is no evidence of what disclosure was given by the Crown in this case. There is, however, agreement two facts or areas were not disclosed: 1) the existence of the ride-along and what evidence, if any, the ride-along might have to give; and 2) the constable s reliance on s. 253 of the Highway Traffic Act as one of the reasons to stop Mr. MacDonald. I surmise all other evidence given by Cst. Dawson at the voir dire was in the Crown disclosure, else the defence would have objected. The ride-along [18] The existence of the ride-along came out in Cst. Dawson s voir dire testimony as part of a broad answer Cst. Dawson gave in response to defence counsel s question, Why did you stop him? Mr. MacDonald must have had prior knowledge of the ridealong since Mr. MacDonald presumably rode to the police station with both Cst. Dawson and the ride-along, but defence counsel states he was not previously aware of the ride-along s existence and I accept his word. The Crown Prosecutor also states he had no prior knowledge of the ride-along and I accept his word as well. Cst. Dawson obviously knew about the ride-along, but there is no evidence of a cover-up and it makes no sense to think Cst. Dawson would attempt to conceal the existence of a person who sat in close proximity to Mr. MacDonald for some time. [19] The Crown has a duty to disclose material witnesses and their evidence. I do not know if the ride-along is a material witness in the sense of being able to give relevant evidence on any of the issues in this case. The ride-along is an untrained witness. I expect he could identify Mr. MacDonald and based on his being in the police cruiser with Mr. MacDonald, he might be able to give untrained perceptions about Mr. MacDonald s physical state, particularly whether he exhibited signs of impairment.
Page: 5 Such observations might not be material evidence, since they would come subsequent to the stop and the demand. [20] There is no suggestion by the defence of what other material evidence the ridealong might have, only the assertion he may have some, and things might have gone differently (presumably at the voir dire) had his existence been known. Had the Crown been aware of his existence, the prudent thing would have been to disclose. Since defence counsel was taken by surprise and there was an unknown factor to deal with, a remedy ought to have been given. The remedy, as discussed below, might be a new trial, or adjournment or a stay. Section 253 of the Highway Traffic Act [21] Cst. Dawson s reliance on s. 253 of the Highway Traffic Act as a reason to stop Mr. MacDonald also came in Cst. Dawson s voir dire testimony, partly in response to defence counsel s question, Why did you stop him?, and partly in cross-examination by the Crown. [22] The right to do spot checks for license, registration and insurance pursuant to statutory authorities such as is given by s. 253 of the Highway Traffic Act, is well established as an arbitrary detention which violates section 9 of the Charter, but is a reasonable limit on individual rights, prescribed by law, that is demonstrably justified in a free and democratic society within the meaning of section 1 of the Charter. Hufsky v R. (1988) 40 CCC (3d) 390 (S.C.C.); R v. Ladouceur [1990] S.C.J. No. 53 (S.C.C.); R v McKenna [1996] P.E.I.J. No. 106 (P.E.I.S.C.-A.D.). [23] According to Cst. Dawson, there were a number of reasons why he stopped Mr. MacDonald: 1) he began with the notion of doing a s. 253 check on a vehicle to show the ride-along how it was done; 2) it was very late at night and not many vehicles were on the go; 3) he observed a vehicle moving in the mall parking lot; he knew all stores and offices in the mall were long closed except for the bar or lounge, which would have just closed after doing its Saturday night business; 4) he followed the vehicle and observed it was moving very slowly, suspiciously slow in his view. [24] Cst. Dawson s decision to stop the vehicle then, was a fluid process, which relied on a number of factors accumulated over a period of time, rather than a single factor. [25] While it is not so much evidence as a reason, the Crown ought to have disclosed the reliance on s. 253 of the Highway Traffic Act as being one reason for the stop and I expect the Crown would have, had it been aware. The defence would not have been better for the disclosure the defence would have had a better chance of winning had s. 253 not been relied on. Nevertheless, the defence is entitled to some remedy for the
Page: 6 non-disclosure; the choices of remedy would be the same as for non-disclosure of the ride-along. Law [26] In some cases, the remedy for Crown failure to disclose a material witness, perhaps even a potentially material witness, or evidence, may be to stay the charges. In my opinion, this is not such a case. I reach this conclusion because: 1) it is not known if the ride-along has any material evidence to give; 2) the case has not started yet; and 3) I cannot see Mr. MacDonald suffered any prejudice which could not have been remedied by an adjournment. [27] A stay of proceedings due to non-disclosure is a drastic remedy, a remedy of last resort, to be granted only if all other possible remedies are clearly inappropriate and the defendant has suffered irreparable harm denying him his right to make full answer and defence. R. v. O Connor (1995), 103 CCC 1 (SCC); R v Dixon (1998) SCJ No. 17). It should only be granted in the most serious of cases. [28] I have set out below the criteria to be considered in deciding the appropriate remedy for non-disclosure according to my review of the case law, together with my findings on how these criteria relate to this case. In my view, this case meets none of these criteria: 1 Crown misconduct or bad faith concerning disclosure: There was no Crown misconduct in disclosure. 2 Serious charges: The charges are not serious ones, they are summary conviction breathalyzer and impaired charges. 3 Very important evidence not disclosed: The evidence not disclosed has not been shown to be serious or important: it is not at all surprising a constable would rely on s. 253 of the Highway Traffic Act in making a stop. As to the ride-along evidence, it is unknown, but there is nothing to suggest it would be important evidence. 4 Lengthy delay will result from adjournment: The case came on for trial only two and one-half weeks after plea, and based on what the Provincial Court judge said, the delay caused by an adjournment would have been a couple of weeks (transcript p. 37). 5 Have there been numerous previous adjournments? There have been none.
Page: 7 6 Did the disclosure come late in the trial, so that important witnesses had already testified? The disclosure did not come late in the trial notwithstanding the statement by the Provincial Court judge that we re not in the pre-trial proceedings, we re in the trial. The trial proper still has not begun. In R v. Balaberde, February 28, 2003, Sask Prov. Ct., a decision relied upon by the defence, the failure to disclose only became apparent when the trial was underway. The same was true in R. v. Aitken (1995), 129 Sask R. 66 (Sask Prov. Ct.), upheld on appeal: (1995) 138 Sask R. 187 (Sask QB), both relied on in Balaberde. 7 Has the defence committed itself, for example, through testifying?: So far, the defence has challenged the grounds for stopping the defendant, after giving notice of that challenge before trial. The defence has not disclosed any more of its case. 8 Has there been irreparable harm to the defendant s case? If an adjournment is given to receive and respond to the late disclosure, I appreciate the result may be the defendant may not have a winning defence left, because an arbitrary s. 253 Highway Traffic stop is a Charter justified stop, but that is not the point of this criterion. The test requires comparing the defendant s situation post-adjournment with the defendant s situation as it would have been had full disclosure been given at the start. Given that comparison, I cannot see any irreparable harm has been done. 9 If the case is allowed to continue, will there be harm to the integrity of the administration of justice? I expect no such harm were the case to continue. On the other hand, if the case is stayed, I expect it would be viewed as one where the defendant got off on a technicality. 10 Other than a stay, is there no way to rectify the non-disclosure problem? The obvious and perhaps the only reasonable way to fix the nondisclosure problem is an adjournment and a will-say from the ride-along. R v O Connor, supra; R v Dixon, supra; R v Duke [1995] NBJ No. 132 (NBCA); R v. Saunders [1996] NBJ No. 332 (NBQB); R v. Donaldsen [2006] SJ No. 351 (Sask QB).
Page: 8 Conclusion [29] The Crown s appeal is granted. The stay of proceedings ordered by the Provincial Court is set aside. I order full disclosure by the Crown, including a will-say statement of the ride-along, followed by a trial. Any other pre-trial requirements will be dealt with by the Provincial Court. August 20, 2007 Taylor J.