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Criminal Law Conference November 20, 2009 The Soup

Criminal Law Conference November 20, 2009 The Soup. Impaired Driving – Are there any Defenses Left? Judge Alan T. Tufts William Delaney - Crown Michael Taylor - Defense. The Soup. Three Issues 1. Can breath samples still be excluded under s.24(2) 2. Is there still a last drink defense

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Criminal Law Conference November 20, 2009 The Soup

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  1. Criminal Law ConferenceNovember 20, 2009The Soup Impaired Driving – Are there any Defenses Left? Judge Alan T. Tufts William Delaney - Crown Michael Taylor - Defense

  2. The Soup • Three Issues • 1. Can breath samples still be excluded under s.24(2) • 2. Is there still a last drink defense • 3. Latest word on retrospectivity Created by Judge Alan T. Tufts

  3. Breath SamplesExclusion or not – s. 24(2) • R. v Grant 2009 SCC 32 • July 17, 2009 • Short Answer • May yes; maybe no; it depends Created by Judge Alan T. Tufts

  4. S.24(2) - R v Grant • Outline • Quick Review of Grant s. 24(b) analysis and principles • Review Grant’s reference to breath samples • Review cases to date • Discuss particular factual issues Created by Judge Alan T. Tufts

  5. S.24(2) - R v Grant • Has the law changed re: exclusion of breath and blood samples for Charter violation? • Majority refers specifically to breath samples – para. 106 and 111 Created by Judge Alan T. Tufts

  6. S.24(2) - R v Grant • S.24(b) • Majority recognize the existing jurisprudence is difficult to apply and need to take a fresh look at framework – Grant para. 3 • Collins factors are captured in new test – see Grant para. 71 Created by Judge Alan T. Tufts

  7. S.24(2) - R v Grant Limit our review to violations of s.8,9 and s.10(b) Created by Judge Alan T. Tufts

  8. S.24(2) - R v Grant • Remember the Collins/Stillman test • Trial Fairness • Seriousness of Charter breach; and • Effect of Exclusion on repute of AoJ • Grant discusses the problems with this test particularly the conscriptive/non-conscriptive distinction Created by Judge Alan T. Tufts

  9. S.24(2) - R v Grant • Breath/Blood samples generally seen as conscriptive • Stillman – generally inadmissible – affected trial fairness Created by Judge Alan T. Tufts

  10. S.24(2) - R v Grant • SCC revisits s.24(2) in Grant • Trial Fairness is a multi-faceted and contextual concept • Difficult to reconcile with near-automatic presumption that admission of broad classes of evidence would bring AoJ into disrepute • Trial fairness is over-arching systemic goal Created by Judge Alan T. Tufts

  11. S.24(2) - R v Grant • Overview of s.24(2) • New focus on “all of the circumstances” • When? – AoJ brought into disrepute Created by Judge Alan T. Tufts

  12. S.24(2) - R v Grant • Overview • What is Administration of Justice • More than just investigating, charging and trying suspected offenders • About the Rule of Law and upholding Charter values • Focus is long term, forward –looking and from a societal perspective • Not about punishing the police Created by Judge Alan T. Tufts

  13. S.24(2) - R v Grant • Overview • Assessing and balancing: • The effect of admission • On • Society’s confidence in the justice system Created by Judge Alan T. Tufts

  14. S.24(2) - R v Grant • Having regard to 3 inquiries • 1. Seriousness of the Charter-infringing state conduct • 2. Impact of the breach on the Charter- protected rights of the accused • 3. Society’s interest in the adjudication of the case on its merits Created by Judge Alan T. Tufts

  15. S.24(2) - R v Grant • 1. Seriousness • Would admission send the wrong message that courts condone deviation from Rule of Law • More severe or deliberate stronger need to disassociate with violation • Aim is preserve public confidence • Rule of Law requires state authorities to uphold Charter rights – Grant para. 73 Created by Judge Alan T. Tufts

  16. S.24(2) - R v Grant • 1. Seriousness • Conduct varies – inadvertent or minor to willful or deliberate – more seriousness more likely public confidence is affected – favours exclusion • Some action lessens seriousness • A. Preventing lost evidence • B. Good faith – ignorance or willful blindness is not good faith • Remember a lot of Charter breaches do not make it to Court – Grant para. 75 Created by Judge Alan T. Tufts

  17. S.24(2) - R v Grant • 2. Impact • Extent to which breach undermines protected interest • Range from fleeting and technical to profoundly intrusive • What message are we sending about the value of protected rights – is there a risk pf public cynicism - rights have to be more “high-sounding” –Grant para. 76 Created by Judge Alan T. Tufts

  18. S.24(2) - R v Grant • Impact • Look to the interest engaged by the infringed right and the degree to which the violation impacts that right • Examples • Right to silence - s.7 • Right to privacy and human dignity – s.8 • More serious intrusion more likely exclusion - matter of degree –Grant para. 77 Created by Judge Alan T. Tufts

  19. S.24(2) - R v Grant • 2. Impact • From Accused perspective – Harrison para. 31 • Not necessarily the accused as an individual Created by Judge Alan T. Tufts

  20. S.24(2) - R v Grant • 3. Society’s Interest in Adjudication • Truth seeking function only one consideration • Reliability is a factor – if breach undermines – leans to exclusion • Exclusion of reliable and relevant evidence undermines truth seeking function – trial unfair from public perspective – Grant para. 81 Created by Judge Alan T. Tufts

  21. S.24(2) - R v Grant • Importance to Crown’s case • A factor • Questionable reliability even if all of Crown’s case – still likely exclude • More reliable evidence – more likely admissible • Short term public clamour cannot deafen the judge to the need to protect long term repute of AoJ – Grant para. 84 Created by Judge Alan T. Tufts

  22. S.24(2) - R v Grant • Balance • No overriding rule governs • Mathematical precision not possible • Flexible • Qualitative analysis • Not just a contest between police conduct and seriousness of offense • Cannot let seriousness of offense overwhelm analysis • Police must act better than criminals - Harrison • No Charter free zone - Don Stuart - Queens U Created by Judge Alan T. Tufts

  23. S.24(2) - R v Grant • Application – Different Kinds of Evidence • A. Statements by Accused • B. Bodily Substances • C. Non-bodily Physical Evidence • D. Derivative Evidence • Discoverability role on “impact” • Discoverability not determinative Created by Judge Alan T. Tufts

  24. S.24(2) - R v Grant • Bodily Substances • SCC discusses in context of s.8 • Critics of Stillman categorical conscriptive test – consensus now that admission is not dependant solely on conscripted or not • Multi-faceted flexible approach based on “all of the circumstances” is required • Charters concerns better addressed by reference to interests of privacy, bodily integrity and human dignity Created by Judge Alan T. Tufts

  25. S.24(2) - R v Grant • Bodily Substances • Statements and bodily substances are different – Grant para. 105 • Conscription rule often produced anomalous results • Breath samples often excluded even where breach was minor and would not realistically bring AoJ into disrepute Created by Judge Alan T. Tufts

  26. S.24(2) - R v Grant • Bodily Substances – Grant Factors • Seriousness • Fact specific • Is conduct deliberate and egregious – leads to exclusion • Good faith – leads to admission Created by Judge Alan T. Tufts

  27. S.24(2) - R v Grant • Bodily Substances – Grant Factors • Impact • S.8 context • Degree to which search and seizure intrudes on privacy, bodily integrity and human dignity • Range – forcible blood taking at one end fingerprinting at another Created by Judge Alan T. Tufts

  28. S.24(2) - R v Grant • Bodily Substances – Grant Factors • Merits of Adjudication • Usually favours admission • Usually reliable evidence Created by Judge Alan T. Tufts

  29. S.24(2) - R v Grant • Bodily Substances – Grant Factors • Balance see Grant para. 111 • Each case considered on its own facts • If intrusion is deliberate and impact on privacy is high – exclusion • But; if violation less egregious and impact less severe reliable bodily substances admitted • Example – breath samples – collection is relatively non-intrusive Created by Judge Alan T. Tufts

  30. S.24(2) - R v Grant • Summary of Grant principles • Purpose is to maintain good repute of AoJ • AoJ embraces maintenance of the Rule of Law and upholding Charter rights in the justice system as a whole • Focus is on “all of the circumstances • Societal - broad impact on the long-term repute of the justice system – and it is prospective • Not about punishing police – it is about our justice system Created by Judge Alan T. Tufts

  31. S.24(2) - R v Grant • Lessons from Grant re: Breath Samples • Near-exclusion rule for conscripted breath samples is gone • Fact driven analysis • Majority’s comments on bodily substances are in context of s.8 • If s.8 violation focus is on deliberate conduct and good faith • Impact on privacy seems to be minimal – Grant para. 111 Created by Judge Alan T. Tufts

  32. S.24(2) - R v Grant • Lessons from Grant • Need to identify which Charter violation e.g. s.8, s.9 or s.10(b) • Protected interests are different • Impact is on the protected interest – maybe different depending on the type of violation • What values are being undermine? • Are blood samples different than breath samples? Created by Judge Alan T. Tufts

  33. S.24(2) - R v Grant • Lessons from Grant • Practical affect • Need clearer Notices of Charter Applications - identify Charter violations • Evidence of “conduct” and “impact” by direct or X examination • Remember A carries the onus Created by Judge Alan T. Tufts

  34. S.24(2) - R v Grant Case Law Update Created by Judge Alan T. Tufts

  35. S.24(2) - R v Grant • Reported Cases since Grant re s.253 or 254 • 20 Breath Samples Cases • 14 no exclusion • 6 exclusion • 3 Refusal Cases • All excluded • 1 Statement Case – Impaired Driving • Exclusion Created by Judge Alan T. Tufts

  36. S.24(2) - R v Grant • Summary – Seriousness • Gravity of state conduct Created by Judge Alan T. Tufts

  37. S.24(2) - R v Grant • Summary – Impact • Protected interests – need to identify • S.8 • Privacy and dignity • Bodily integrity for bodily substances • S.9 • Liberty • S.10(b) • Right to silence Created by Judge Alan T. Tufts

  38. S.24(2) - R v Grant • Summary – Merits of Adjudication • Reliability of evidence • Importance to Crown’s case • Seriousness of alleged offense cuts both way Created by Judge Alan T. Tufts

  39. S.24(2) - R v Grant • Summary – Balance • Focus is on long term repute of AoJ Created by Judge Alan T. Tufts

  40. S.24(2) - R v Grant • Trends from cases re breath cases • S.8 • Reliance on Grant – impact is low • Focus is on state conduct • Flagrant? • Deliberate? • Good Faith/Bad faith • S.9 • Impact weighs more in favour of exclusion • S.10(b) • Mixed treatment • Focus is on impact and state conduct Created by Judge Alan T. Tufts

  41. S.24(2) - R v Grant • Trends • Contextual • Particularly for s.8 and s.9 • If state conduct is focus need more complete examination • More extensive submissions • How does police conduct undermine Charter protected right in the long term • S.10(b) • Impact is different than s.8 Created by Judge Alan T. Tufts

  42. S.24(2) - R v Grant • Trends • Two themes re s.8 • 1. Focus on good faith/bad faith given impact is minimal • R v Du • R v Fildan • R v. Bryce • 2. Focus on long term “big picture” • R v Beattie • R v Robinson Created by Judge Alan T. Tufts

  43. S.24(2) - R v Grant • Final Remarks • No easy answers • Not a mathematical exercise – no set formula to determine exclusion/inclusion • Contextual but informed by long term need to uphold Charter values Created by Judge Alan T. Tufts

  44. S.24(2) - R v Grant • Problem No. 1 • D stopped in early afternoon • Smell of alcohol and rosy face • ASD demand made but no ASD present • ASD arrives and test performed after 20 minute delay • T/J conclude demand was outside authority of s.254(2) and found s.8 & ( violation • Exclusion? Created by Judge Alan T. Tufts

  45. S.24(2) - R v Grant • Problem No. 2 • D’s car seen weaving in lane and involved in minor fender bender -11pm • D admits to drinking • Delay of approx. 15 minutes making ASD demand after police had opportunity to do so. • T/J found s.8 & 10(b) violations Created by Judge Alan T. Tufts

  46. S.24(2) - R v Grant • Answers • Problem No. 1 • Exclusion – R v Beattie 2009 ONCJ 456 • The decision is a difficult one. Most of the circumstances clearly favour inclusion of the evidence. Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case. Created by Judge Alan T. Tufts

  47. S.24(2) - R v Grant • Answers • Problem No. 2 • No Exclusion – R v Fildan [2009] OJ No. 3604 • .. no case to be made that .. constable acted with deliberate intent to give short shrift to Ms. Fildan's constitutional rights. While no good or bad faith findings are warranted on the record here, .. [no] egregious or a deliberate abuse of power. • It cannot be said that the delay in ASD testing prolonged … attendance at the roadside. • there is nothing demeaning or objectionable in participation in ASD testing. • reliability of .. evidence is an important factor • the appellant has failed to demonstrate that the admission .. could bring the administration of justice into disrepute. Created by Judge Alan T. Tufts

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