R. c. Brar, 2019 QCCQ 1554
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1- Charter procedure: general principles
[64] The trial judge enjoys a significant amount of discretion in determining how a voir dire is to be conducted. The judge controls the procedural aspects pertaining to the hearing of Charter applications and these are not subject to rigid or pre-fabricated rules.[20] Despite the fact that the Charter was proclaimed almost 40 years ago, the applicable procedure in asserting Charter violations is still left to the courts.
[65] The accused in this matter advances a claim that his Charter rights were infringed by the police. The parties agree that the voir dire will be blended with the trial proper.
[66] However, despite the Court’s invitation that they engage in discussions, the parties do not agree as to the appropriate procedure with respect to the witnesses to be called.
[67] In the case at bar, the accused is charged with offences arising from a relatively routine “impaired driving” scenario. The type of arguments raised are commonplace. It would appear, however, that the parties have experienced different modes of procedure in other trials. Thus, some direction seems to be needed.
[68] Burden of proof has a bearing on the issue of procedure on this application. As pointed out by Lytwyn J. in R. v. Bacon et al., in the voir dire setting, the responsibility to call witnesses and the right to cross-examine them is ordinarily dependent upon who has the burden of proof.[21]
[69] It is trite law that an accused bears the ultimate burden of persuasion to establish, on a civil standard, that the evidence was obtained in a manner that infringed or denied his Charter rights. If the evidence is not persuasive either way, the Court must conclude that there was no infringement.[22] Moreover, in the event of a Charter violation, at the remedy stage, the accused bears the further burden under s. 24(2) of establishing that, having regard to all the circumstances, the admission of the evidence could bring the administration of justice into disrepute.[23]
[70] Of course, there are exceptions to the usual rule. In certain cases, as a practical matter, the onus on any issue will tend to shift back and forth between the applicant and the Crown, depending on what the particular contested issue is, which party is seeking to rely on it and, of course, the nature of the Charter right involved.[24]
[71] In such cases, while the “ultimate” burden of proof still remains with the accused throughout, various “evidentiary” burdens may shift to the Crown.
[72] For instance, warrantless searches are presumed unreasonable under s. 8 of the Charter. In such cases, the onus shifts to the Crown to establish lawfulness of the search.[25] Similarly, the Crown has the onus to establish waiver of the right to counsel. In a different context, at the s. 24(2) stage, the burden may tactically shift to the Crown in a case of a s. 10(b) breach to justify the admissibility of the tainted evidence.
[73] In cases regarding the admissibility of the accused’s statements, matters of onus become even more muddied, as the voluntariness inquiry and the Charter inquiry often occur simultaneously, while both concepts engage opposing burdens. In such cases, it makes sense to hold a single voir dire.
[74] Regarding the procedure to be followed on voir dire, the highly discretionary nature of the application judge’s powers provides the benefit of flexibility.
[75] However, unfortunately, significantly varying practices inject a level of uncertainty and inconsistency that make it difficult for counsel to properly prepare their files, which may ultimately lead to added delays, as happened in the case at bar. In R. v. Brodersen, Rosborough J. listed a few of those difficulties:
Who has the obligation to ensure sufficient time is scheduled for the application? Who must secure the attendance of witnesses? When should they appear? Will a witness be the subject of direct or cross-examination? While a degree of flexibility in the preparation for an organization of Charter s. 24 hearings may always be required, the absence of any guideline, even a presumptive manner of proceeding, lends itself to administrative inefficiency and/or delay.
[emphasis added]
[76] In all cases, the overriding concern is that each Charter application be heard in a fair and effective manner.
[77] Having said that, the right to a fair trial does not entitle an accused to those rules and procedures most likely to result in an acquittal.[27]
[78] As mentioned above, there are often mixed and competing burdens in Charter applications. In such cases, it will often be appropriate to blend the voir dire, which offers the advantage of economy and efficiency. The overall time-saving effect is not negligible. Moreover, where the voir dire is blended with the trial on the merits (as the parties have agreed to do here), that adds a level of intertwining burdens, since the Crown always bears the ultimate burden to prove the essential elements of the offence(s) beyond a reasonable doubt.
[79] For that reason, the trial judge must always exercise caution.
2- Which party must assign the witnesses?
[80] As aptly expressed by Rosborough J., a fundamental incident of the burden of proof is the duty to adduce evidence sufficient to discharge that burden.[28]
[81] The determination of the obligation to call evidence has practical consequences. In addition to the administrative costs associated to compelling a witness’s presence in court, the determination will also have an effect on the order of the witnesses and the power to cross-examine.
[82] We cannot lose sight that the Canadian criminal justice system remains an adversarial one. The Supreme Court of Canada reaffirmed this elementary principle in of R. v. Cook, a case where the accused argued that there was a mandatory duty on the Crown to call certain witnesses.[29] In dismissing the argument, the Court expressed that the Crown has the broad discretionary power to conduct its own case, and the choice of witnesses went to the very heart of that power. The decision is within its purview alone and should not be interfered with.
[83] While blending voir dires with trials will often be ideal in terms of trial economy, the Court must still be careful to recognize the differing burdens of proof and implications thereof.[30]
3- The ability for the accused-applicant to cross-examine the police officers
[84] In the usual course, save for some recognized exceptions, the party calling a witness is not permitted to cross-examine him or her.
[85] Thus, in principle, absent evidence of partiality, should the accused-applicant chose to call police officers as witnesses in an attempt to bolster his allegation of Charter violations, there is no reason to allow him to lead said witnesses in their questioning.
[86] Writing for the Court in R. v. Cook, L’Heureux-Dubé J. also dismissed the accused’s argument suggesting that he would lose the right to cross-examine the witnesses if he called them himself. Should the accused wish to have witnesses heard, he may “do his work and call his own witnesses, if he considers it appropriate to do so”.[31] Moreover, the right to “face ones accuser” does not imply the right to cross-examine. In fact, on numerous occasions, the Supreme Court has clearly held that the right to contemporary cross-examination is not necessary to guarantee a fair trial.[32]
[87] Do the general rules apply differently in the Charter context? Does an applicant somehow have a heightened right to cross-examine the police officers who were involved in his apprehension or detention?
[88] I am not inclined to recognize such a derogation.
[89] Instead, I agree with Toploinsky J. in R. v. Ward, who dismissed the accused’s appeal in a case of refusal to provide a breath sample. On the professed “right” to cross-examine, the Court explained:
I turn to the main issue under this heading: whether the Appellant had the “right” to cross‑examine the officer. First, the law pertaining to which party bears the burden of proof on a Charter application is clear, the burden is on the party claiming the Charter violation. The claiming party must establish the alleged infringement on a balance of probabilities, and to do so, must adduce at least some evidence capable of establishing their point: R. v. Collins.
The law is also clear that in most circumstances, a party is not permitted to cross‑examine his or her own witnesses. This rule is based on the supposition that witnesses are partial to the party for whom they are testifying, and may thus be inculcated to provide the examiner with answers helpful to their cause. When this type of witness partiality is combined with the examiner’s foreknowledge of the facts, it is thought that leading questions may detract from the truth‑seeking function of the adversarial process: see David Watt, Watt’s Manual of Criminal Evidence (Scarborough: Thomson Carswell) 2006 at 19.02; R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 153 C.C.C. (3d) 225 (Ont. C.A.).
[…]
If the substance of the present case can be taken as any indication, the more than 14 years that have passed since the decision in R. v. Morberg have done little to bridge the “procedural morass” into which the Charter voir dire has slipped. One particularly enduring area of dispute is whether the party who bears the initial evidential burden on a Charter application is restricted to direct examination of the witnesses called to substantiate the claim. This issue takes on particular significance when the accused bears the burden and the crucial witnesses are police officers.
The Appellant argues that an accused person has the “right” to cross‑examine police witnesses even when that officer is called by the defence because the defence bears the initial evidential burden. However, despite the accumulation of 25 years of Charter jurisprudence, the Appellant was not able to refer me to a single ruling of precedential value that definitively established the existence of this supposed “right” to cross‑examine.
[90] Of course, the foregoing is subject to the mechanisms that already exist in the common law and in ss. 9 to 11 of the Canada Evidence Act providing for the right to cross-examine adverse or hostile witnesses, or other witnesses having given prior inconsistent statements.
[91] However, as observed by Rosborough J., courts have generally disparaged the notion that police witnesses are, ipso facto, untrustworthy or partial witnesses.[35] I agree that operating on such a premise would be inappropriate. I will not assume, based only on the fact that they are police officers, that they are ready and willing to mislead the Court, nor will I presume without foundation that they are partial witnesses. Instead, they are afforded the same rebuttable presumption of dignity and open-mindedness as any other witness that takes an oath.
[92] To be sure, I acknowledge that in managing the proceedings of the voir dire, a motions judge has the discretion to relax the strict rules pertaining to the examination of witnesses, upon request from defence counsel. The overriding priority is that the hearing be fair, relevant and succinct. However, such discretion certainly does not amount to a firm and binding automatic right to cross-examine police officers simply because it is a Charter voir dire.
[93] Instead, with respect to the questioning of witnesses, I agree with the following propositions outlined in R. v. Brodersen:
(iii) Each party bearing a burden of proof must take whatever steps are necessary to secure evidence to discharge that burden of proof. I am confident that some form of pre-trial consultation will assist in achieving this goal informally and without duplication… Nevertheless, failure to ensure the attendance of that witness or other police witnesses necessary for the purposes of the Charter s. 24 application because of assumptions about which witnesses would be called by the prosecution will not, as a general rule, result in an adjournment.
[…]
(vi) Where the applicant elects to call the investigating police officer or other police officers as witnesses, those witnesses will, as a general rule, be examined-in-chief. The applicant may be able to establish bias or partiality on the part of a given witness (in which case leave to cross-examine may be granted ab initio). However, three is no presumption of bias or partiality. In addition, the usual litigation tools may assist in demonstrating inconsistency, adversity or hostility sufficient to justify varying levels of cross-examination.
(vii) The respondent [Crown] is at liberty to cross-examine any witnesses called by the applicant.
[emphasis added]
[94] In R. v. Gendron, the Alberta Provincial Court again reiterated that the accused must not presume the Crown’s responsibility for ensuring the attendance of all witnesses necessary to prove his allegations of Charter violations. Such a presumption (and parallel lack of effort to compel the presence of the witnesses) can only lead to misunderstandings, delay and frustration.[37]
ANALYSIS
[95] Is there anything in the case at bar that would prompt the Court to derogate from the generally applicable rules?
[96] As mentioned above, the parties have blended the voir dire and the trial on the merits. At first glance, there appear to be several competing and shifting burdens at play. To name a few:
✔ Did the Charter apply to the search of the vehicle conducted by Mr. Dimaurizio? Was he a State actor? Was he acting under the direction of the police? Was he acting as an agent for the police? (accused’s burden);
✔ If the Charter applied, it is a warrantless search. Was said search reasonable? (Crown’s burden);
✔ Regardless of the reasonableness of the vehicle’s search, did the police have the requisite reasonable grounds to suspect and demand an ASD breath sample? (arguably the Crown’s burden);
✔ Was the accused arbitrarily detained? (accused’s burden);
✔ Was the accused’s right to counsel infringed? (accused’s burden);
✔ Should the evidence be excluded pursuant to s. 24(2) of the Charter? (accused’s burden).
