R. v. Travers, 2001 NSCA 71
32) In my view, the evidence at trial was more than sufficient to alert the trial judge that he should raise the question of the admissibility of evidence in light of possible Charter infringement. The trial judge should have conducted an inquiry into whether there had been any violation of the appellant’s Charter rights. At that time, after hearing submissions from the appellant and the Crown, the judge could have considered any argument by the Crown based on exigent circumstances. If he found any infringement of rights, he should have then determined whether the evidence obtained pursuant to it, namely the clock radio, should be excluded under s. 24(2) of the Charter.
33) I recognize that trial judges have generally considered it improper to raise Charter issues when the parties before them did not do so. See, for example, R. v. Kane [Mistrial], [1998] N.S.J. No. 557 (S.C.) at §14. This is hardly surprising as they have been found to have erred when they did so, not only where the accused was represented by counsel but also where the accused was self-represented. For illustrations of the latter circumstance, see R. v. Sheppard, [1990] N.J. No. 76 (S.C.) and R. v. Sveinson, [1990] M.J. No. 671 (Q.B.).
34) However, I am of the view that the appropriate approach is that in R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.) which held that, in certain circumstances, trial judges have a duty to raise Charter issues on their own motion. The appellant there had testified at trial that the police had refused to let him call a lawyer before they questioned him and obtained his statement. If true, his evidence indicated a clear infringement of his rights under s. 10(b) of the Charter. There was no evidence to indicate that he had waived those rights and no inquiry had been made regarding any such infringement and, if any found, whether his statement would still be admissible notwithstanding s. 24(2) of the Charter. At p. 372 of Arbour, the Ontario Court of Appeal stated:
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.
It allowed the appeal under several grounds including the improper admission of the appellant’s statement, quashed the convictions, and directed a new trial.
35) The appellant in Arbour was represented by counsel. I suggest that the principle enunciated in that case is equally applicable, if not more so, to proceedings involving a self-represented litigant who is unfamiliar with the law.
36) 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)
37) 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. He continued by quoting Ewaschuk, J. who wrote in R. v. Boron (1983), 1983 CanLII 1606 (ON SC), 8 C.C.C. (3d) 25 at pp. 32-3, 3 D.L.R. (4th) 238, 36 C.R. (3d) 329 (Ont. H.C.):
...Trial judge raising the issue
...a penal prosecution is based on the adversary system which requires party presentation of evidence and not active participation by a trial judge. Active participation often bespeaks the taking of sides, i.e., the appearance of partiality, which should be most assiduously avoided. Assuming the goal of a penal prosecution is to do justice to both accused and Crown, justice is best achieved by the non-involvement of the trial judge in the presentation of evidence or the raising of legal issues. However, to do justice in the particular case, judicial intervention, rare though it should be, may be warranted in penal proceedings.
38) 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.
39) The evidence before the trial judge in this case warranted his intervention. It came from the police officers themselves, was uncontroverted, and suggested that the police may have deliberately disregarded the appellant’s rights under s. 8 of the Charter in entering and searching his dwelling and in seizing the clock radio which was entered into evidence at trial. The judge erred in law when he proceeded without entering into an inquiry as to the possibility of breach of constitutional rights. The summary conviction appeal court judge erred in law when he upheld the verdict of the trial judge in these circumstances.
40) In my view, the curative provisions of s. 686 (1)(b)(iii) are not applicable in this case. It cannot be said that there is no reasonable possibility that the verdict would have been different if the error of law had not occurred: R. v. Charlebois, 2000 SCC 53 (CanLII), [2000] 2 S.C.R. 674. As indicated in the trial judge’s reasons, the demonstrative evidence placed before the court by the playing of the clock radio in open court clearly had an impact but its extent cannot be assessed from the record before us.
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