R v Bialski, 2018 SKCA 71
[65] In Canada, courts of all levels have recognized that in order to promote justice and ensure fairness of the adjudication process, trial judges will be required to render some assistance to those who are self-represented so that the defences available to such individuals are presented with “full force and effect”: R v McGibbon (1988), 1988 CanLII 149 (ON CA), 45 CCC (3d) 334 (Ont CA) at 347; R v Candido, 2015 SKCA 104 at para 13, 467 Sask R 128; R v Richards, 2017 ONCA 424 at paras 110–112, 349 CCC (3d) 284 [Richards]; Olenick at para 6; R v Tran (2001), 2001 CanLII 5555 (ON CA), 156 CCC (3d) 1 (Ont CA) at paras 22–23 [Tran]; Phillips at para 25.
[66] While the Crown contends trial judges have no obligation to raise Charter issues, the jurisprudence does not support that contention.
[67] In R v Arbour (1990), 4 CRR (2d) 369 (WL) (Ont CA) [Arbour], the accused argued, among other things, that his Charter right to counsel had been violated. According to the uncontradicted trial evidence, the police had refused to let the accused call a lawyer before questioning him and obtaining a statement. Even though the accused was represented at trial by counsel, who at the outset of the proceedings (before any testimony had been heard) had agreed to the admission of the statement, the Ontario Court of Appeal per curiam held that once admissible uncontradicted evidence of the circumstances surrounding the giving of the statement had been received, the trial judge should have raised the statement’s admissibility based on a possible infringement of the accused’s right to counsel. The Court stated:
[9] We are of the view that once there was admissible uncontradicted evidence before the court, indicating that there had been an infringement of the appellant’s rights under s. 10(b) of the Charter it was incumbent on the trial judge to enter upon an inquiry to ascertain whether such an infringement had occurred. …
(Emphasis added)
[68] In R v Travers, 2001 NSCA 71, 154 CCC (3d) 426 [Travers], the accused had been self-represented at trial. In that case, the admissible uncontradicted evidence was that the police, as a result of a noise complaint, had attended the accused’s residence. When the accused refused to answer the door, the police forced their way into his home and conducted a warrantless search – seizing a clock radio. At trial, the accused did not raise a breach of his s. 8 Charter right and the summary conviction appeal judge found no error.
[69] The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial, holding the trial judge should have, on his own motion, raised the Charter issue. After adopting the approach taken in Arbour, Oland J.A., writing for the Court, stated:
[38] The approach taken in Arbour is not confined to Ontario. In the case under appeal in R. v. Fraillon (1991), 1990 CanLII 2828 (QC CA), 62 C.C.C. (3d) 474 (Que. C.A.), the trial judge on his own motion had entered a stay of fraud proceedings on the basis that the accused was not able to make full answer and defence due to delay in laying charges. At p. 476, the Quebec Court of Appeal stated:
Generally, it is open to the judge to point out to the parties that, in his mission to do justice, he is troubled by a point in the facts or in the law which neither one raised. This is especially the case where it is a right recognized by the Charter. But again, he must point it out to the parties and give them all the time necessary to completely argue the question before he rules on it. Here the parties to their great astonishment learned during the rendering of judgment that it was based, and based solely, on a question that the judge had only raised and resolved proprio motu. (Emphasis added)
[39] In R. v. Boire et. al. (1991), 1991 CanLII 2805 (QC CA), 66 C.C.C. (3d) 216, one of the issues considered by the Quebec Court of Appeal was whether, in the absence of a formal application, a court of appeal is entitled to itself raise the violation of a Charter right. At p. 223, Brossard, J.A. commented that, considering that the Charter constitutes the most fundamental law in respect of human rights and in particular of accused in penal matters, he found it difficult to see how it could be argued that a court would not be entitled, in certain circumstances and subject to certain conditions, to itself consider its provisions when confronted with a flagrant violation of the Charter. …
[40] I do not suggest that the merest intimation of a possible Charter infringement will found a duty upon a trial judge to enter immediately upon an inquiry where none of the parties before him has raised this argument. However, and without attempting to fully delineate the point at which the duty arises, where there is strong evidence of a prima facie case of breach of a Charter right relevant to the proceeding, a judge has a responsibility to raise the issue, invite submissions and, if appropriate, to conduct an exclusionary hearing in order to protect the integrity of the judicial process.
(Bold emphasis added)
[70] While it might appear from paragraph 40 of Travers that Oland J.A. was proposing a slightly different test than that set out in Arbour, namely, “strong evidence of a prima facie case of breach of a Charter right” as opposed to “admissible uncontradicted evidence of a breach”, I am of the view that was not the Court’s intention. Justice Oland quoted the test set out in Arbour and accepted Arbour as setting out the correct approach. Moreover, subsequent cases have viewed Travers as adopting Arbour.
[71] In Tran, the Ontario Court of Appeal considered a situation where an accused charged with impaired driving had been injured in a motor vehicle accident. After being transported by ambulance to hospital, the accused consented to providing blood samples for medical purposes but no demand to provide a blood sample pursuant to s. 254(3) of the Criminal Code had been made nor was a warrant obtained for a blood sample. At trial, the Crown sought to prove the offence of impaired driving by relying on the blood sample taken for medical purposes. In allowing the appeal, Borins J.A. referred to Travers as follows:
[26] Applying R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), Oland J.A. was of the opinion that, even when the defendant is represented by counsel, there are circumstances in which it is appropriate for a trial judge to raise Charter issues. These circumstances include when the evidence indicates a possible infringement of a defendant’s Charter rights. In Arbour, where the defendant had counsel, this court stated at p. 372 C.R.R.:
We are of the view that once there was admissible uncontradicted evidence before the court, indicating that there had been an infringement of the appellant’s rights under s. 10(b) of the Charter, it was incumbent on the trial judge to enter upon an inquiry to ascertain whether such an infringement had occurred. This was not done. Accordingly, the statement should not have been admitted in evidence or, having been admitted, should not have been considered as evidence in the circumstances.
[72] In Richards, the Ontario Court of Appeal again had an opportunity to address the issue. The accused, who was self-represented at trial, was convicted of possession of marijuana for the purpose of trafficking and possession of cannabis resin. The evidence established that the police had conducted surveillance of the accused’s home after an informant had indicated drugs were being sold from that home. The police obtained a telewarrant for the search. They then arrested the accused at a convenience store, cautioned him and gave him his right to counsel. The accused asked to speak to a lawyer and the officer told him he could do so at the police station. At the station, police held off allowing the accused to call counsel until the search warrant was executed. Drugs and drug paraphernalia were seized from the home. The trial judge did not advise the accused of the police’s obligation to facilitate immediate contact with legal counsel or that the accused had a right to challenge the admissibility of evidence obtained incidental to an infringement of s. 10(b) of the Charter. The Ontario Court of Appeal allowed the appeal. Justice Watt, writing for a unanimous court, indicated a trial judge’s obligations to a self-represented accused can extend to raising Charter issues on his or her own motion where there is “admissible uncontradicted evidence of a relevant Charter breach”. He cited both Arbour and Travers with respect to that test:
[113] The onus extends, at least can extend, to an obligation on the trial judge to raise Charter issues on the judge’s own motion where the accused is self-represented: R. v. Travers, 2001 NSCA 71, 154 C.C.C. (3d) 426, at para. 36. This is not to say, however, that this specific obligation becomes engaged on the mere scent or intimation of a possible Charter infringement: Travers, at para. 40. But where there is admissible uncontradicted evidence of a relevant Charter breach, the trial judge has an obligation to raise the issue, invite submissions and enter upon an inquiry into the infringement and its consequences: Travers, at paras. 36, 40; R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), at p. 372.
(Emphasis added)
[73] Li, which the Crown relies on to support the proposition that the test for intervening is evidence of a “flagrant violation based on uncontradicted evidence of a sufficient clarity to warrant intervention”, was decided before the Ontario Court of Appeal rendered its decision in Richards. I agree with the law as stated by Watt J.A. in Richards. The test for whether a trial judge should intervene and on his or her own motion raise a Charter issue is whether there is admissible uncontradicted evidence of a Charter breach. If Travers is viewed as setting out a different test, namely, where there is “a strong prima facie case of a Charter breach”, then in my view the test enunciated by the Ontario Court of Appeal in Arbour, Tran and Richards is the correct test.
[74] In my view, a judge who raises Charter issues on his or her own motion should do so when it first becomes clear the evidence of a breach will be uncontradicted. The trial judge should then, as stated by Oland J.A. in Travers, “invite submissions and, if appropriate … conduct an exclusionary hearing in order to protect the integrity of the judicial process” (at para 40).
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