APPEAL DISMISSED

R. v. Alex, 2017 SCC 37 – Criminal law – Evidence – Admissibility

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin Keywords

37515 Sa Majesté la Reine c. Roland Colangelo QC Criminal law ‒ Sentencing ‒ Lengthening of sentence on appeal

37521 Yana Badamshin v. Option Consommateurs et al. QC Civil procedure ‒ Class action ‒ Case management ‒ Four parallel class actions filed

37303 Denis Gagnon c. Bell Mobilité inc. QC Contract ‒ Contract for services ‒ Early cancellation fee clause

37301 Rogers Communications s.e.n.c., faisant également affaire sous la raison sociale Rogers Sans-fil s.e.n.c. c. Mario Brière QC Contract ‒ Contract for services ‒ Early cancellation fee clause

37451 Leo-Progress Enterprises Inc. v. Mariner Foods Limited ON Bankruptcy and Insolvency – Insurance – Evidence

37523 Jason Norman Yeo v. Her Majesty the Queen PEI Criminal law – Sentencing

37511 Gladys Milena Segura Mosquera v. Minister of Citizenship and Immigration Federal Court Civil procedure – Appeal – Leave to Appeal

37558 Placid Inc. v. Seven Oaks General Hospital MB Charter of rights ‒ Fundamental justice ‒ Right to life, liberty and security of person

APPEAL DISMISSED

R. v. Alex, 2017 SCC 37Criminal law Evidence Admissibility

On appeal from a judgment of the British Columbia Court of Appeal (2015 BCCA 435) affirming a decision of Schultes J. (2014 BCSC 2328).

A’s vehicle was stopped by the police who conducted a typical drinking and driving investigation. After A failed a roadside screening device test, he provided samples of his breath at the police station which registered readings significantly over the legal limit. A was charged with driving “over 80”, contrary to s. 253 of the Criminal Code. At trial, it was uncontested that A provided the breath samples into an approved instrument operated by a qualified technician within the prescribed time periods, and that the readings were reliable. Once these preconditions are met, the Crown can take advantage of the shortcuts found in ss. 258(1)(c) and 258(1)(g) of the Code to establish an accused’s blood‑alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings. This relieves the Crown from having to call two witnesses at every trial: a breath technician and an expert toxicologist. In the instant case, the trial judge found that the grounds to make the breath demand were insufficient, but applied Rilling v. The Queen,[1976] 2 S.C.R. 183, which held that it is unnecessary for the Crown to prove a lawful demand in order to rely on the evidentiary shortcuts. A was convicted of driving “over 80”. Successive appeals by A to the British Columbia Supreme Court and British Columbia Court of Appeal were dismissed.

Held (5-4): The appeal should be dismissed.

Per Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.:

The text of ss. 258(1)(c) and 258(1)(g) of the Code does not support the requirement of a lawful demand for the evidentiary shortcuts to apply. First, Parliament could easily have specified that the sample had to be taken “pursuant to a ‘lawful’ demand” as it has done elsewhere in the Code. Second, this interpretation is in tension with the structure of the provisions, which is comprised of an opening part followed by a specific list of preconditions that must be met, all of which bear directly on the reliability of the evidentiary shortcuts. The meaning of the phrase “pursuant to a demand made under subsection 254(3)” is simply to identify a breath sample as the bodily sample to which the provisions apply, which may have been unclear at the time of their initial enactment in 1969. In any event, plain meaning alone is not determinative and a statutory interpretation analysis is incomplete without considering the context, purpose and relevant legal norms.

The purpose and context of the provisions do not support the requirement of a lawful demand for the evidentiary shortcuts to apply. Their overriding purpose is to streamline proceedings by dispensing with unnecessary evidence. The preconditions governing these shortcuts are concerned with the reliability of the breath test results and their correlation to the accused’s blood‑alcohol concentration at the time of the offence. The lawfulness of a breath demand has no bearing on these matters. This purpose is distinct from that of s. 254(3), which establishes and defines police powers, including the prerequisites for a lawful breath demand. The overriding purpose of the evidentiary shortcuts would be frustrated by importing a lawful demand requirement. Requiring the Crown to call two additional witnesses will lead to unreasonable delays in drinking and driving proceedings that are counterproductive to the administration of justice as a whole and frustrate Parliament’s intent.

The comparison to the s. 254(5) refusal offence is flawed. While the refusal offence is part of the same statutory regime, it is different from other drinking and driving offences in substance. Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability for an “over 80” offence is based on driving with a blood‑alcohol concentration over the legal limit. Therefore, it is not unfair that a person who refuses to comply with an unlawful demand is acquitted, but if that same person complies and is prosecuted for an “over 80” offence, the evidentiary shortcuts continue to apply. This does not discourage compliance with breath demands. It remains a dangerous gamble for an individual to deliberately refuse a breath demand. If the demand is later found to be lawful, that person may be convicted, even if he or she was actually under the proscribed limit.

It is unnecessary to determine whether Rilling was correctly decided under the law as it existed at that time, as the concerns which animated the minority in Rilling have been addressed in the present day context. The scientific reliability of the results of properly administered breath tests is now firmly established. And today, s. 8 of the Canadian Charter of Rights and Freedoms, in combination with s. 24(2), provides a comprehensive and direct protection against unreasonable searches and seizures, including those of breath samples. By contrast, a loss of the s. 258 evidentiary shortcuts does not provide a meaningful remedy for an unlawful demand by the police and achieves no substantive or procedural benefit for an accused — it merely requires the Crown to call two unnecessary witnesses to arrive at the same result. Such an approach would be antithetical to the Court’s recent jurisprudence emphasizing the importance of participants in the criminal justice system working together to achieve fair and timely justice.

As a lawful demand was not a precondition to the s. 258 evidentiary shortcuts, there is no basis in this case for appellate interference and A’s conviction must be upheld.

Per McLachlin C.J. and Abella, Brown and Rowe JJ. (dissenting):

The requirement for reasonable grounds to demand a breath sample under s. 254(3) of the Code is a precondition to the operation of the presumptions in ss. 258(1)(c) and 258(1)(g). Rilling is therefore no longer good law. A balancing between the values of correctness and certainty leads to the conclusion that the need to correct the law predominates in this case. As a result, A’s appeal should be allowed, his conviction set aside and a new trial ordered.

Rilling is based on an incorrect view that relevant evidence is admissible even if it is unlawfully obtained. Such an interpretation conflates the issues of admissibility under common law with the operation of the evidentiary shortcuts, per s. 258(1) of the Code. This interpretation has been attenuated by later jurisprudence which identifies the distinction between admissibility and preconditions to evidentiary shortcuts, and by the importance of a statutory precondition of reasonable and probable grounds being satisfied to ensure a lawful search and seizure ins. 8 Charter context. It has also been attenuated by the modern approach to statutory interpretation.

Reading ss. 258(1)(c) and 258(1)(g) in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament, the reasoning in Rilling cannot withstand scrutiny. The phrase “pursuant to a demand made under subsection 254(3)” does not simply identify the sample to which the provision applies. That such words are meaningless is not plausible. This alternate interpretation would mean that the other requirements of s. 254(3), such as the requirement that the demand be made by a peace officer or that the demand be made as soon as practicable, are also not required for the evidentiary shortcuts to apply. This would mean that the Crown would have the benefit of the evidentiary presumptions for any sample, irrespective of the conditions under which the demand was made. Furthermore, the interpretation that “pursuant to” imports the conditions under s. 254 as a pre‑condition of the evidentiary presumptions under s. 258(1) is consistent with the position the minority endorsed in Rilling and with later appellate case law.

Reversing Rilling will not undermine the efficacy of the statutory scheme, or disrupt the proper administration of justice. In prosecuting “over 80” charges, where the peace officer acted without reasonable grounds, the Crown will not be able to rely on the evidentiary shortcuts. However, the Crown will still be able to prove its case where it has the evidence to do so, even if it takes longer. Thus, no injustice will arise. While the Crown may be inconvenienced, it is more important that these provisions of the Code be given their proper meaning and effect. As well, today’s criminal procedure framework is different from that which was in place when Rilling was decided. Current procedures, such as disclosure, charge screening and pre‑trials, ensure that parties are aware of issues before a trial begins. The loss of evidentiary presumptions is a distinct issue from whether the certificate would be admissible, which is governed by the rules of evidence subject to any s. 8 Charter applications. Thus, there would be no ambush after the Crown had closed its case. The statutory scheme will still be able to function as it should without the rule in Rilling.

Reasons for judgment: Moldaver J. (Karakatsanis, Wagner, Gascon and Côté JJ. concurring)

Dissenting Reasons: Rowe J. (McLachlin C.J. and Abella and Brown JJ. concurring)

Neutral Citation: 2017 SCC 37

Docket Number: 36771

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16714/index.do

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37515

Her Majesty the Queen v. Roland Colangelo (Que.)

Criminal law – Sentencing – Lengthening of sentence on appeal

The Crown is challenging a stay of sentence ordered by the Quebec Court of Appeal. On an appeal from a sentencing decision, the Court of Appeal found that the six‑month sentence imposed by the trial judge departed significantly from the range applicable to the facts of the case and that the appropriate sentence was two years less a day. However, the Court of Appeal ordered a stay of the sentence because Mr. Colangelo had already served his six‑month sentence, had had problems during his imprisonment and was completely rehabilitated.

37521

Yana Badamshin v. Option Consommateurs, Louis-Alexandre Leclaire - and - Panasonic Corporation of North America, Panasonic Canada Inc., Panasonic Corporation, Sanyo North America Corporation, Sanyo Electric Co., Ltd., Kemet Corporation, Kemet Electronics Corporation, Elna Co., Ltd., Elna America Inc., Nippon Chemi-Con Corporation, United Chemi-Con Corporation, Taiyo Yuden Co., Ltd., Taiyo Yuden (U.S.A.) Inc., AVX Corporation, TDK Corporation, TDK-EPC Corporation, TDK-EPC Corporation of Canada, TDK U.S.A. Corporation, Rohm Co. Ltd., Rohm Semiconductor U.S.A., LLC, Hitachi Chemical Co., Ltd., Hitachi AIC Incorporated, Hitachi Chemical Company America, Ltd., Nichicon Corporation, Nichicon (America) Corporation, NEC Tokin Corporation, NEC Tokin America Inc., Matsuo Electric Co., Ltd., Matsuo Electronics of America, Inc., Rubycon Corporation, Rubycon America Inc., Vishay Intertechnology, Inc., NEC Corporation, NEC Canada Inc., Samsung Electro-Mechanics, Samsung Electro-Mechanics America, Inc. (Que.)

Civil procedure – Class action – Case management – Four parallel class actions filed

Four parallel class actions were filed, including the actions of both parties. On motion, the trial judge stayed three of them on the ground of lis pendens. The applicant was the first to file the class action. Therefore, she claimed she should be given priority to proceed first, in accordance with the Quebec “First to file” rule between competing motions to authorize the bringing of a class action. The respondent opposed this claim, stating that the applicant’s action is not in the putative class members’ best interests. The Superior Court of Quebec suspended the Applicant’s file and the Respondent’s action to proceed. The Court of Appeal dismissed the appeal.

37303

Denis Gagnon v. Bell Mobility Inc. (Que.)

Contract ‒ Contract for services ‒ Early cancellation fee clause

The applicant Denis Gagnon instituted a class action against the respondent Bell Mobility Inc., seeking reimbursement of early cancellation fees charged after he cancelled his cellular telephone service contract before the end of the specified term, as well as punitive damages. The Quebec Superior Court allowed the class action in part. The Court of Appeal dismissed the appeals.

37301

Rogers Communications Partnership, also carrying on business as Rogers Wireless Partnership v. Mario Brière (Que.)

Contract ‒ Contract for services ‒ Early cancellation fee clause

The respondent Mario Brière instituted a class action against the applicant Rogers Communications Partnership, seeking reimbursement of early cancellation fees charged after he cancelled his cellular telephone service contract before the end of the specified term, as well as punitive damages. The Quebec Superior Court allowed the class action in part. The Court of Appeal dismissed the appeal.

37451

Leo-Progress Enterprises Inc. v. Mariner Foods Limited (Ont.)

Bankruptcy and Insolvency – Insurance – Evidence

Mariner Foods Limited supplied salmon to Leo-Progress Enterprises Inc. In 2013, Leo-Progress Enterprises Inc. failed to pay some of Mariner Foods Limited’s invoices. Mariner Foods Limited went into receivership. An action was commenced against Leo-Progress Enterprises Inc. for breach of contract. Mariner Foods Limited was the named plaintiff. The trial judge awarded damages. After trial, Mariner Foods Limited entered into liquidation. Leo Progress Enterprises Inc. appealed and applied to admit fresh evidence that Mariner Foods Limited was under administration after the date of the statement of claim and in liquidation after the date of the trial judgment. The Court of Appeal found that the action for breach of contract was a subrogated claim brought by Mariner Foods Limited’s credit insurer and dismissed the appeal.

37523

Jason Norman Yeo v. Her Majesty the Queen (P.E.I.)

Criminal law – Sentencing

The applicant was convicted of trafficking cocaine and he pleaded guilty to possession of cocaine for the purposes of trafficking, a weapons offence and breaches of recognizances and undertakings. When sentenced, he was serving a nine-year sentence that had been recently imposed for an armed robbery. The Court of Appeal dismissed the appeal from sentences and from conviction for trafficking.

37511

Gladys Milena Segura Mosquera v. Minister of Citizenship and Immigration (FC)

Civil procedure – Appeal – Leave to Appeal

Citizenship and Immigration Canada informed the applicant that her citizenship application was treated as abandoned because she had not provided a reasonable excuse for failing to attend a citizenship hearing. The Federal Court dismissed the application for leave and judicial review. The Federal Court of Appeal dismissed the appeal.

37558

Placid Inc. v. Seven Oaks General Hospital (Man.)

Charter of rights – Fundamental justice – Right to life, liberty and security of person

In September 2015, Mr. Placid was involuntarily admitted to Seven Oaks General Hospital in Winnipeg as a psychiatric patient. Mr. Placid sought to challenge his involuntary admission, and the administration of various drugs while in hospital. In November 2015, the Manitoba Mental Health Review Board concluded that there had been no material change in Mr. Placid’s condition, and issued an order confirming his status as an involuntary patient, confirming his physician’s opinion that Mr. Placid was not mentally competent to make treatment decisions, and authorizing specified treatment as recommended by his physician, including drug injections.

On appeal, Justice Abra of the Court of Queen’s Bench of Manitoba upheld the order of the Review Board, on December 7, 2015, finding that there was no basis on which to interfere with the order. Mr. Placid then sought to challenge Justice Abra’s decision. On September 22, 2016, Justice Hamilton of the Manitoba Court of Appeal dismissed Mr. Placid’s motion seeking an extension of time to file his appellant’s factum and his book of appeal.