R. v. Brodersen, 2012 ABPC 231
Burdens of Proof
[22] Burden of proof is of some importance to the issue of procedure on this application. Although now well-established in our substantive jurisprudence, the law regulating burdens of proof on a Charter, s.24 application merits repetition at the outset of this discussion. The burden of proving the violation of a constitutionally-protected right rests with the Applicant. Violation must be proven on a balance of probabilities. In Collins v. The Queen, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 (‘Collins’), Lamer J. (as he then was) stated:
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The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. That appears from the wording of s. 24(1) and (2), .... The appellant also bears the initial burden of presenting evidence. The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the court must conclude that they were not. [citations omitted] |
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[23] The Supreme Court has recently commented upon the nature of evidence sufficient to discharge the burden of proof on a balance of probabilities. In F.H. v. McDougall, et al, 2008 SCC 53 (CanLII), 2008 S.C.C. 53 the Court was called upon to consider whether there ought to be varying degrees of proof within the 'balance of probabilities' burden. That notion was rejected, with Rothstein J. noting that, " ... evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test" (at para.46). Once this burden of proof on evidence that is sufficiently clear, convincing and cogent is discharged, the Court's jurisdiction to fashion a remedy under the Charter, s.24 is engaged.
[24] Charter, s.24 applications frequently involve shifting burdens of proof. That is to say that, while the ‘ultimate’ burden of proof remains with the Applicant, various ‘evidentiary’ burdens’ may shift to the Respondent. A shifting of that nature occurred in this case with respect to two subsidiary issues. First, Cst. Farrell undertook a warrantless search for the Applicant's breath samples. Since warrantless searches are prima facie unreasonable, the evidentiary burden of proving the lawfulness of Cst. Farrell’s warrantless search reverted to the Respondent. See: R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.J. No.35 (at para.15). In addition, since the Applicant had initially asserted his right to counsel, the evidentiary burden of proving waiver of that right shifted to the Respondent.
[25] The dynamic of ‘shifting burdens’ was referred to by the court in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 where the Lamer C.J.C. stated (at para.50):
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However, just because the applicant’ bears the ultimate burden of persuasion, under s.24(2) does not mean that he or she will bear this burden on every issue relevant to the inquiry. 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 issue is, which party is seeking to rely on it and, of course, the nature of the Charter right which has been violated. (emphasis added) |
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[26] The ‘ultimate’ issues on this Charter, s.24 application are: (i) has there been a violation or violations of a constitutionally-protected right or rights; and, if so, (ii) would admission of evidence acquired as a result of or after that violation or those violations bring the administration of justice into disrepute. The ‘ultimate’ burden of proving these issues on a balance of probabilities rests with the Applicant. It remains throughout.
[27] The burden of proof on various subsidiary or evidentiary issues would shift to the Respondent in this case. For example, the Respondent is required to prove lawful authorization to seize the Applicant’s breath samples. But authorization by law is not the only prerequisite of a constitutionally-valid, warrantless search. The law authorizing the search may itself be unreasonable or the search may have been undertaken in an unreasonable manner. See: Hunter v. Southam, [1984] 2.S.C.R. 145. These were not challenged on the facts of this case but they nonetheless serve to illustrate the distinction between the ultimate and evidentiary burdens of proof on this Charter voir dire.
Charter Procedure - An Overview
[28] The Charter was proclaimed in April of 1982 and has since come to play a significant role in criminal proceedings. Unfortunately, its substantive guarantees arrived unescorted by any code of procedure or guidelines for their enforcement. The development of procedures and guidelines were, at least until recently, left to the courts.
[29] The process of doing so has been incremental and often inconsistent. To cite but one example, it took more than one-half a decade to determine a concept as fundamental as the burden of proof. Problems arising from this incremental process were noted by the court in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 (‘Mills’) where McIntyre J. commented (at para.268):
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Problems have arisen in connection with the procedure to be followed relating to Charter remedies and some confusion has existed in various courts. As has been said on many occasions, the Charter was not enacted in a vacuum. It was created to form a part - a very important part - of the Canadian legal system and, accordingly, must fit into that system. It will be noted at once that s.24(1) gives no jurisdictional or procedural guide. This absence makes it clear that the procedures to be followed must be adapted and used for the accommodation of applications for relief under s.24(1). |
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[30] These difficulties have prompted both the courts and law reform bodies to recommend the use of Rules of Court to regulate various aspects of Charter procedure. See, for example, the comments of Sopinka J. in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at para.25; Regulating Charter Applications: Final Report and Recommendations of the Working Group (November, 2000) - Uniform Law Conference of Canada; Rules - Charter Applications in Criminal Cases - Alberta Law Reform Institute - June 1, 2006 (‘Rules’).
[31] Several provinces have now enacted Rules of Court for the purpose of regulating Charter applications. See: Criminal Rules of the Supreme Court of British Columbia, SI I/97-140; Criminal Procedure Rules of the Supreme Court of the Northwest Territories, SI/98-78; Nunavut Court of Justice Criminal Procedure Rules; Manitoba Court of Queen’s Bench Rules (Criminal), SI/92-35; Rules of 48 the Ontario Court in Criminal Proceedings, SI/97-133 (Provincial Court); Ontario Court of Justice Criminal Proceedings Rules, SI/92-99 (Superior Court); Rules of the Provincial Court of Newfoundland and Labrador in Criminal Proceedings, SI/2004-134. Alberta is not amongst them.
[32] The Provincial Court of Alberta has no Rules of Court regulating procedure in Charter applications. Notice that such an application will be brought is now mandated by substantive law. See: Constitutional Notice Regulation, A.R. 102/1999 but the procedure to be followed thereafter has been left for development by the courts as a matter of common law. There is no doubt that courts have the jurisdiction to control the course of proceedings before them, including Charter, s.24(2) applications. As noted by Charron J. in R. v. Pires; R. v. Lising, 2005 SCC 66 (CanLII), [2005] 3 S.C.R. 343 (at para.35). “For our justice system to operate, trial judges must have some ability to control the course of proceedings before them.”
[33] The evolution of common law seldom begins in the Supreme Court of Canada, however. And the ‘case-by-case’ development of the common law governing Charter, s.24 applications in the lower courts has inevitably led to disparate practices. In 1992, the Alberta Court of Appeal delivered its seminal judgment in R. v. Dwernychuk (1992), 1992 ABCA 316 (CanLII), 135 A.R. 31 (C.A.); leave denied (1993), 141 A.R. 317n (S.C.C.) (‘Dwernychuk’). The court noted that Charter, s.24(2), “ ... indeed s.24 as a whole, is silent as to the procedure to be followed when such an application is made.” And further, “No clear practice appears to have developed, as to such procedure, at least in Alberta.”
[34] Almost two decades later, the Alberta Law Reform Institute made a similar observation in Rules, noting that (at p.1):
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... [A]pplications by accuseds based on alleged violations of rights or freedoms protected by the Canadian Charter of Rights and Freedoms are not the subject of standardized national regulation. Both the means by which these applications are regulated and the scope of regulation vary from province to province, territory to territory, and court to court.
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See also the comments of Topolnisky J. in R. v. Ward, 2007 ABQB 344 (‘Ward’), at para.47.
[35] Idiosyncratic practices in the conduct of Charter, s.24 applications can pose difficulties for counsel preparing for them. 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 and 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.
Charter Procedure - Fundamental Principles
[36] Our jurisprudence provides some guidance as to an appropriate procedure. There are certain fundamental principles which must be observed and which will assist courts in the exercise of their discretionary power to control the course of proceedings in Charter, s.24 applications. A review of that jurisprudence is helpful in shaping a ‘general’ or ‘presumptive’ procedure. In doing so, it bears repeating that a general or presumptive procedure must always bend to the court’s discretionary power to control the particular proceedings before it. The overriding concern is that each Charter, s.24 application be heard in a fair and effective manner.
[37] One fundamental principle guiding the procedure for Charter, s.24 applications is the notion that they must function in the same general manner or in a manner analogous to existing criminal procedures. Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 was one of the first cases relating to Charter procedure to be dealt with by the Supreme Court. At issue was the correct procedure to be followed when making application for a Charter remedy based upon an allegation of ‘unreasonable delay’ (Charter, s.11(b)). McIntyre J. noted at the outset of his reasons that “the Charter was not enacted in a vacuum” (at para.268). It was superimposed upon an existing network of jurisdictional rules and procedures. For that reason he ruled that (at para.263):
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The absence of jurisdictional provisions and directions in the Charter confirms the view that the Charter was not intended to turn the Canadian legal system upside down. What is required rather is that it be fitted into the existing scheme of Canadian legal procedure. |
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[38] The “existing scheme of Canadian legal procedure” embraces the ‘adversarial system’ of justice. As stated by the court R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 (‘R.D.S’) (at para.15) : "The bedrock of our jurisprudence is the adversary system. Criminal prosecutions are less adversarial because of the Crown's duty to present all the evidence fairly. The system depends on each side's producing facts by way of evidence from which the court decides the issues.” In the context of the criminal justice system, the ‘contest’ between state and accused is thought to advance the search for the truth. This, as distinct from inquisitorial or other systems of justice. The merits and demerits of these models for seeking the truth and arriving at just outcomes are beyond the ambit of these reasons. Nevertheless, the evolution of procedure in Charter, s.24 applications must observe the balance inherent in and necessary for the operation of the adversarial system.
[39] The case of R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113 (‘Cook’) provides a ready example of the application of the adversarial system to criminal justice procedure. In that case, Crown Counsel elected not to call at trial the victim of an assault. On appeal from conviction it was argued that the prosecution had a duty to do so and that its failure to discharge that duty robbed the accused of his opportunity to cross-examine the witness. The Supreme Court rejected those arguments and, ultimately, dismissed the appeal from conviction. In doing so, it commented on the relationship of Crown Counsel’s duty of fairness and the functioning of our adversarial system of justice. The court stated (at para.21):
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Nevertheless, while it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence (Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; Power, supra, at p. 616), it is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth: see, for example, R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 295, per L'Heureux-Dubé J. Nor should it be assumed that the Crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country's criminal law mechanism: R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91; R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229; Boucher, supra. (emphasis added) |
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And further (at para.39):
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The adversarial process functions on the premise that it is the obligation of the Crown to establish a case beyond a reasonable doubt against the accused. Once this threshold has been surpassed, however, it is up to the accused to call evidence or face conviction: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874. The adversarial nature of the trial process has been recognized as a principle of fundamental justice R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933). As such it should be construed in a way that strikes a fair balance between the interests of the accused and those of society: R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475; Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143, at p. 148; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486. In my view, placing an obligation upon the Crown to call all witnesses with information bearing on the case would disrupt the inherent balance of our adversary system. (emphasis added) |
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[40] Our adversarial system of justice permits those charged with criminal offences to remain silent in the face of criminal accusation. Where the prosecution seeks to prove guilt beyond a reasonable doubt, those accused of crime need make no statement and may remain silent about the nature of their defence(s). This tactical advantage helps to counterbalance the power of the state used in its efforts to investigate and prosecute crime.
[41] Nevertheless, this counterbalance does not apply in the context of the Charter, s.24 application. The roles of accuser and accused are reversed, with the Applicant alleging wrongdoing by the state and the state seeking to justify its conduct. The wrongdoing alleged may be serious and cause the Respondent to attract considerable opprobrium. The violation of constitutionally-protected rights is no small transgression.
[42] In addition to any stigma, the remedies available to address the violation of a constitutionally-protected right can be significant. In this case, the immediate remedy sought is the exclusion of evidence. The ultimate effect of that exclusion, however, was acquittal of the accused. Other potential remedies include orders for disclosure, adjournments, costs and a judicial stay of proceedings. Moreover, the list of potential remedies available pursuant to the Charter, s.24 is not closed.
[43] Recognition of this new paradigm was the burden of the judgment in Dwernychuk. The court held that the Charter Applicant was not entitled to ambush the Respondent in seeking the exclusion of evidence. It stated:
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As far as the merits of the criminal charge for which the accused is being prosecuted are concerned, the adversary system remains unmodified in terms of the obligations of the defence; the defence need not disclose what evidence of fact or opinion it intends to adduce. This, it is thought, is a rule which at least in part matches the investigative and prosecutorial powers of the prosecution. However, when it comes to an issue of the exclusion of evidence where there has been an infringement of a specific Charter right, no similar established rule exists. The reasonable person would expect that defence counsel make known to the prosecution either before or at the commencement of the trial, that he or she intends to allege that there has been an infringement of a specific Charter right and to apply for the exclusion of evidence. |
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[44] The ‘existing scheme’ of Canadian legal procedure and the balance inherent in our adversarial system of justice each inform the procedure to be followed on the Charter, s.24 application. Those applying for remedies have a duty to do so fairly. Those responding have the right to fully answer and defend against the accusation of constitutional wrongdoing. Events leading up to the Charter, s.24 application as well as the presentation and examination of witnesses must respect these principles.
Charter Procedure - Notice and Evidence
[45] The Notice provided by the Applicant in this case fell significantly short of the standard recommended in cases such as R. v. Bull, 2010 ABPC 68 (‘Bull’).To give but one example, there are no particulars of how Cst. Farrell’s advice to the Applicant failed to advise him of the “full extent of his right to counsel at the initial stages of the investigation”. The court’s attempt to secure those particulars met with some degree of reticence and little success.
[46] Where there is inadequate pre-trial notice of the Charter, s.24 application, it is clear that the court has jurisdiction to seek that information out before authorizing any hearing. The court in Dwernychuk stated in that regard: “When the defence does indicate to the court, preferably no later than the commencement of trial, that it intends to make an application under s.24(2) to exclude evidence, the trial judge may ask defence counsel to summarize the evidence which it would elicit on the application.” Should the Applicant fail to do so, there may be no hearing. The court in Dwernychuk declared that, “There is no absolute entitlement to a voir dire.”
[47] This procedure is neither novel nor one unique to Alberta. Ontario courts have (for at least two decades) required that those seeking a voir dire within which to prove the violation of a constitutionally-protected right put forward a proper factual basis to justify such a hearing. In R. v. Kutynec, 1992 CanLII 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont.C.A.), for instance, Finlayson J.A. stated for the court (at p.301):
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In some cases, when the defence indicates, prior to the calling of evidence, that it intends to advance a Charter application to exclude evidence, the trial judge may call upon the defence to summarize the evidence that it anticipates it would elicit on the application. This kind of procedure is well-known to the criminal process: see R. v. Sproule (1975), 1975 CanLII 1354 (ON CA), 26 C.C.C. (2d) 92 at pp. 97-8, 30 C.R.N.S. 56 (Ont. C.A.); R. v. Dietrich (1970), 1970 CanLII 377 (ON CA), 1 C.C.C. (2d) 49 at p. 62, [1970] 3 O.R. 725; leave to appeal refused [1970] S.C.R. xi. If the defence is able to summarize the anticipated evidentiary basis for its claim, and if that evidence reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary inquiry. In other words, if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement, or a finding that the evidence in question was obtained in a manner which infringed the Charter, or a finding that the test for exclusion set out in s. 24(2) was met, then the trial judge should dismiss the motion without hearing evidence. |
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There is nothing unique in this position. Where an accused bears the burden of proving the admissibility of evidence, it is incumbent on counsel to put forward a factual and legal basis on which the evidence could be admitted. Counsel is not entitled to proceed immediately to a voir dire on the issue. The same principle should be applied where the onus is on an accused to establish that certain evidence is admissible. |
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[48] British Columbia courts have followed suit. In R. v. Feldman (1993), 91 C.C.C. (3d) 156 (B.C.C.A.); appeal dismissed (1994) 1994 CanLII 37 (SCC), 93 C.C.C. (3d) 575 (S.C.C.), the British Columbia Court of Appeal made a similar ruling. There, the accused (as Applicant) sought to exclude evidence, alleging violation of his Charter, s.8 right. He took the position that the prosecution first had to call the investigating officer and prove the existence of a search warrant. The prosecution declined to do so and the accused was convicted. In upholding that decision, the court affirmed the obligation to establish a factual basis for a Charter voir dire before the court had any duty to engage one. Hinkson J.A. stated succinctly in that regard (at para.25): “In order to persuade the trial judge to conduct a voir dire it was necessary for the defence to summarize the evidence that it anticipated it would elicit on the application.” See also: R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.).
[49] When applying for a Charter, s.24 remedy, the Applicant has a duty to fully disclose the basis upon which it is doing so. There is no place for reticence or tactical obscurity. Moreover, the contents of any Charter, s.24 notice are not privileged and may well be used by the Respondent to prepare its response to the allegation of constitutional wrongdoing: R. v. Wiebe, 2007 ABPC 47. Where the notice itself is insufficient to permit that preparation, information should be sought out before any hearing is authorized.
[50] Clarification of the basis upon which a Charter, s.24(2) application is brought and the facts or evidence supporting the application can be provided in many forms. A comprehensive Notice may itself serve that purpose. See:Bull. Affidavits, agreed statements of fact or even the representations of counsel may provide a proper factual foundation for commissioning a voir dire. Nevertheless, full disclosure and particulars of the factual basis and evidence underlying the application are essential.
Charter Procedure - Nature of the Hearing
[51] Early on in the development of the Charter, the court in R. v. Clauson (1986), 1986 ABCA 214 (CanLII), 74 A.R. 134 (C.A.) recognized the potential efficacy of the voir dire as a mechanism for the litigation of Charter, s.24 applications. The court commented in that regard:
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It is clear that the Supreme Court has it in mind that the proper procedure is that the accused make an application to the trial judge for an order excluding evidence. At the very least, this application must particularize which Charter right has allegedly been breached. It is not necessary for us to decide, for the purposes of this case, whether the onus is then on the Crown to prove no breach or whether there is any onus on the accused to call evidence of a breach. As the remedy is to be granted by the trial judge, not the jury, the evidence heard would not form part of the main trial and the jury would be excluded. In this sense, one might refer to the hearing as a "voir dire", although that label is probably misleading. |
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[52] It is apparent that issues relating to admissibility of evidence and its exclusion as a Charter, s.24(2) remedy can become intertwined. In some settings, such as the admissibility of a confession where the right to counsel may play a critical role in both the voluntariness and the Charter inquiries, the simultaneous hearing of evidence relating to both avenues of inquiry may be appropriate. The process of doing so has come to be known as a ‘blended voir dire’.
[53] The advantage of the blended voir dire is primarily economy. Evidence which would be heard in one voir dire (eg. voluntariness of a confession) need not be replicated in a second voir dire (eg. violation of the right to counsel). Thus, notwithstanding the mixing of burdens of proof, the overall time-saving to be effected is thought to justify holding a single voir dire.
[54] Blended voir dires can pose unique challenges, however. It is necessary at the outset of any blended voir dire for counsel to have an explicit understanding of the procedure to be followed, the nature of the evidence to be called and the use to which that evidence can be put following any rulings. Will evidence heard on the blended voir dire, or any of it, automatically become evidence for consideration at the trial? Or must there be an application to ‘apply’ that evidence to the trial? Are parties free to re-litigate any issues incidentally raised on the voir dire during the trial? Can additional evidence relating to those issues (in addition to that heard on the voir dire) be adduced at the trial?
[55] The likelihood of multiple and competing burdens of proof in the litigation of Charter issues has been addressed earlier in these reasons. Any problems attendant upon the fair assignment and litigation of those respective burdens is compounded when they are intermingled with the prosecution’s burden to prove beyond a reasonable doubt the essential elements of the ‘impaired driving’ offence(s); in other words, when Charter burdens are mixed with trial burdens. This, when the burdens of proof on trial issues can themselves be the subject-matter of controversy. See, for example, R. v. Buffalo, 2010 ABQB 325.
[56] Complexities involving the conduct of a blended voir dire may be restricted to misunderstandings as between counsel. See: for example, R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont.C.A.). They may be considerably more serious, however, leading to reversible error. See, for example, R. v. Longo, 2008 BCCA 274. It is evident that, whenever a blended voir dire is utilized, both parties and the court have an enhanced obligation to ensure that the legal rights, roles and responsibilities of all involved are not compromised. As noted by the court in R. v. Furlong, 2012 NLCA 29 (at para.28):
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This decision should not be read as an admonition against the blended voir dire. Cooperation among counsel in the conduct of litigation, including cooperation on trial efficiencies like blended voir dires, is to be encouraged. However, procedure cannot trump substantive rights, and parties must remain alert to their legal rights, roles and responsibilities. |
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The ‘level of alertness’ mandated by the court in Furlong may be problematic in the context of routine impaired driving prosecutions.
[57] Moreover, conduct of a blended voir dire does not necessarily or even regularly lead to increased economy or time-saving, at least in the context of the impaired driving trial. It must be borne in mind at the outset that, while the Applicant has a duty of notice in relation to the Charter, s.24(2) application, he has no such duty in relation to other issues to be raised at trial. For those, he has the right to remain silent. In order to exercise its discretion as to the appropriate procedure to be followed, the court would have to be apprised of any trial issues which would be resolved by the hearing of ‘parallel’ evidence on the Charter voir dire. This, before any economy is to be enjoyed.
[58] Where the prosecution seeks to prove beyond a reasonable doubt the accused’s impaired ability to operate a motor vehicle, at least some of the investigating officer’s observations will also be relevant to the lawfulness of his s.254(3)(a)(i) C.C. demand. Nevertheless many other cases hinge either exclusively on the determination of Charter rights or involve considerations idiosyncratic to the trial. Trial issues usually unencumbered by Charter considerations include, for example, whether demands are made and breath samples taken as soon as is practicable, whether the accused was provided with notice and a ‘copy’ of the certificate of analyses or whether there is ‘any evidence to the contrary’. Litigation of these issues may have little, if any, connection to the litigation of Charter rights. In this very case, for example, litigation of the Charter issue settled the case.
[59] These comments are not intended to condemn the use of the blended voir dire in all instances. That type of proceeding may well serve the purposes for which it is intended in some cases. However, I am not convinced that the routine litigation of an impaired driving case is necessarily, and in every instance, one of them.
[60] Once the terms of the voir dire have been settled, the Charter voir dire should be held at the commencement of proceedings. As our Court of Appeal indicated in Dwernychuk, “The defence should, generally, be expected to apply for exclusion of the evidence under s. 24(2) before the evidence is admitted, not after it has been accepted.” It falls to the parties to identify to the presiding judge at the outset of proceedings those situations where they believe that this general rule should not prevail.
Charter Procedure - The Calling of Evidence
[61] A fundamental incident of the burden of proof is the duty to adduce evidence sufficient to discharge that burden. This was recognized as early as 1986, when the court in Collins stated: “The Appellant also bears the initial burden of presenting evidence.” Importantly, this ruling was made in a factual situation where the warrantless search of Ms. Collins would shift an evidentiary burden of proof to the Respondent.
[62] Additional early jurisprudence confirms that obligation. In R. v. Guest (1994), 1994 ABCA 253 (CanLII), 155 A.R. 318 (C.A.) the court was called upon to consider the conduct of a Charter, s.24 application where breach of the right to counsel was not raised until the end of the case for the prosecution. The application to exclude was dismissed at trial but a new trial was ordered on summary conviction appeal. On further appeal by the prosecution the Alberta Court of Appeal reinstated the conviction and commented on the untimely notice of the Charter, s.24 application. It stated (at p.320): “We note that the onus is on the accused to provide the Court with evidence in the first instance.”
[63] The Provincial Court of Alberta has considered the procedure to be followed in Charter, s.24 applications in several reported decisions. One of the earliest is that of R. v. Brosseau, 2001 ABPC 220 (‘Brosseau’). In that case, Allen P.C.J. directed the Applicant to first call its evidence on the Charter, s.24 application. He noted the general rule with respect to the calling of witnesses on a Charter voir dire in the following terms (at para.24):
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If a voir dire is warranted, the obligation to call evidence first is upon the person saddled with the burden of persuasion; in most instances, that burden is upon the accused applicant. Consequently, it is appropriate for the defence, in those cases where the burden of persuasion is upon them to call evidence to provide a factual basis for their legal argument. This is the fairest, most effective, and most efficient procedure because the applicant is aware of the factual basis for the legal challenge and should be able to marshal the evidence more effectively and efficiently toward that end. The Crown, having heard the evidence of the defence and having cross-examined the witnesses, may feel no need to call any evidence on the voir dire. To have the Crown lead evidence in anticipation of rebutting the possible legal challenges by the defence would be cumbersome and unduly lengthen proceedings. |
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And further (at para.32):
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Where the defence does not have the burden of persuasion in a Charter voir dire, there is no burden on the defence to call any evidence. If evidence is to be led on a voir dire, the evidence must be led in direct examination by the Crown. An obvious example of the reversal of the burden of persuasion is a situation where a search or seizure has been conducted without a prior judicial authorization. There the Crown ought to lead evidence first. |
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[64] To like effect is the case of R. v. Habhab, 1997 CanLII 24617 (AB CJ), 197 A.R. 161 (Prov.Ct.) (‘Habhab’). In that case, counsel proposed to the court that the Charter, s.24 application be heard by having the Respondent call the witnesses and evidence it would ordinarily produce at trial. Direct examination would be undertaken by the Respondent and cross-examination by the Applicant. Wenden P.C.J. found such a procedure ‘unusual’ and called for written submissions in support of it. He was not prepared to authorize that procedure without additional information.
[65] In R. v. Coles, 2005 ABPC 20 (‘Coles’), the court undertook an extensive review of existing judicial comment on the procedures to be followed during a Charter, s.24 application. Discretionary control over the procedure to be followed was acknowledged. In the end, however, the court concluded that the voir dire ought to be undertaken by first having the Respondent call the investigating officer as a witness. The courts in R. v. Sapara, [2002] A.J. No.483 (Q.B.) (‘Sapara’); R. v. Trang, 2003 ABQB 1007 (CanLII), 2003 ABQB1007 (‘Trang’); Brosseau; R. v. Bercha, 2004 ABPC 232 (‘Bercha’); R. v. Sanche, 2003 ABPC 4 (‘Sanche’)and R. v. Besharah, 2010 SKCA 2 (‘Besharah’) have followed similar procedures
[66] Reference to the ‘burden of proof’ simpliciter (as opposed to ‘ultimate’ and ‘evidentiary’ burdens of proof) complicates the question of who first has the obligation to call evidence. It is my view that the ultimate burden of proof on the Charter, s.24 application rests with the Applicant. For that reason, (s)he is fixed with the burden of first presenting evidence. The Respondent may rely upon that evidence for its response or is free thereafter to call additional evidence. This pattern follows the existing scheme of Canadian legal procedure.
[67] Determination of the obligation to first call evidence is not merely an academic concern. Coincident with the obligation to first call evidence is the obligation to ensure that ‘the evidence’ is actually present to be called. In many but not all routine ‘impaired driving’ cases, attendance of the investigating officer or other police officers involved in the investigation is undertaken by the prosecution. There are occasions when this is not the case, however. If, for example, only one of several police witnesses involved in discharging the ‘right to counsel’ is present on the trial date, could the Applicant insist on an adjournment because the Respondent has not secured the attendance of all witnesses that the Applicant needs to effectively make his complaint?
[68] Attaching the obligation to first call evidence to the ultimate burden of proof is both logical and consistent with the existing scheme of our criminal procedure. Once that evidence is before the court, shifting evidentiary burdens will fix the party bearing that respective burden with the responsibility of securing and presenting evidence relating to that issue (unless that evidence has already been heard). Following this procedure will avoid misunderstandings, delay and frustration.
Charter Procedure - Examination of Witnesses
[69] The existing scheme of Canadian legal procedure contemplates that the party calling a witness must, as a general rule, undertake an examination-in-chief, as opposed to a cross-examination. There are well-recognized exceptions to this general rule which can operate in a given case to relax the procedure and permit effective challenge. See, for example, Canada Evidence Act, ss.9, 10, 11. Nevertheless, the general rule remains. As noted by Topolnisky J. in Ward (at para.44), “... in most circumstances, a party is not permitted to cross-examine his or her own witnesses”
[70] In Ward, the Charter, s.24 application was heard by having the Applicant call the investigating officer and undertake an examination-in-chief. That procedure was suggested by the Respondent, concurred in by the Applicant and acceded to by the trial judge. When the Applicant asked the investigating officer leading questions, the Respondent objected. The Applicant did not seek to have the officer declared adverse or hostile and merely continued his examination without further leading. On appeal from conviction, it was argued that the Applicant had a right to cross-examine the investigator and that the trial judge erred by not enforcing that right. The appeal was dismissed, however, with Topolnisky J. ruling that (at para.67):
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“Considering that the Appellant did not raise this argument before the trial judge, his position is tantamount to arguing that the structure of a Charter voir dire is beyond the discretion of the trial judge. This position, implicit though it may be, runs contrary to the authorities presented not only by the Crown, but by the Appellant himself. This ground of appeal cannot succeed. |
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[71] Topolnisky J. went on to consider whether the Applicant on a Charter voir dire had a ‘right’ to cross-examine police witnesses. She noted in that regard (at para.48):
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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. |
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Ultimately, the court in Ward found no error in the trial court’s direction that the investigating officer be examined-in-chief. Her decision affirming the courts discretion in that regard is binding upon me. It would appear to be at odds with the decision in Beshara. Other courts have authorized the cross-examination of police witnesses by the Applicant on the Charter voir dire whenever the Respondent has acquired an evidentiary burden of proof. See: Sapara; Trang; Coles; Brosseau; Bercha, Sanche, Besharah.
[72] The decision in Ward confirms the proposition that the structure of a Charter, s.24 voir dire is in the discretion of the trial judge. This includes the manner in which witnesses called by the Applicant or Respondent will be examined. But what should be the general rule in that regard? Is it appropriate to authorize the Applicant to cross-examine the investigating officer on Charter, s.24 applications simply upon request and in the absence of any evidence of partiality?
[73] Courts have generally disparaged the notion that police witnesses are, ipso facto, untrustworthy or partial witnesses. In Brosseau, Allen P.C.J. noted the concern about partiality but then stressed that existing criminal procedure provides mechanisms to assist those who examine a witness in chief when the witness demonstrates partiality or even inconsistency. He went on to state (at para.31):
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Defence counsel often fear that police who have participated in the alleged infringements would be witnesses reluctant to respond to questions regarding that activity. I am not certain that is the case. |
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And in Habhab, Wenden P.C.J. concurred, commenting (at para.44):
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Undoubtedly, one of the major concerns that will be raised by defence counsel is that for the most part, witnesses required for the application to exclude evidence will be the police who investigated the offence. Traditionally, counsel have dealt with police witnesses as cross-examiners. Counsel rightly or wrongly take the view that such witnesses might be less than forthcoming in the answers given. There is not in my view, any evidence, to support this belief. Defence counsel, in the event that the witness is, or appears to be adverse, can always ask the Court for leave to cross-examine. In a situation where an accused is trying to establish that a constitutionally protected right has been breached, the Court ought to give counsel more leeway in cross-examining ones own witness than is ordinarily done. Moreover, witnesses on a Charter voir dire are not always necessarily police witnesses. They can be anyone who happened to be around at the relevant time, or someone with whom the accused consulted at the relevant times. Disclosure requires the Crown to make available to the defence the names of such people, and all other relevant information. Surely it must be left to defence counsel to have these people to attend as witnesses if, in their assessment, the testimony of such witnesses is required in support of the application. Furthermore, no one would suggest that the Crown examine the witnesses in chief, first, and then the defence cross-examine them. In light of these observations, and what has been said in the cases, one cannot see any justification for the procedure presently proposed. |
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[74] There are grave dangers in adopting stereotypical assumptions about the partiality of a witness based solely upon occupation. In R.D.S., the court was called upon to consider whether a trial judge’s comments about police officers raised a reasonable apprehension of bias. The judge had responded to Crown Counsel’s rhetorical question by commenting that police officers had been known to mislead the court and that, "police officers do overreact, particularly when they are dealing with non-white groups". Crown Counsel argued that these comments raised a reasonable apprehension of bias.
[75] R.D.S. was ultimately resolved on grounds unrelated to the issues relevant to this case. Nevertheless, the court commented upon the manner in which courts ought to approach the evidence of witnesses belonging to, inter alia, particular occupations. The court stated (at paras.131-3):
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At the commencement of their testimony all witnesses should be treated equally without regard to their race, religion, nationality, gender, occupation or other characteristics. It is only after an individual witness has been tested and assessed that findings of credibility can be made. Obviously the evidence of a policeman, or any other category of witness, cannot be automatically preferred to that of accused persons, any more than the testimony of blue eyed witnesses can be preferred to those with gray eyes. That must be the general rule. In particular, any judicial indication that police evidence is always to be preferred to that of a black accused person would lead the reasonable and knowledgeable observer to conclude that there was a reasonable apprehension of bias. |
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In some circumstances it may be acceptable for a judge to acknowledge that racism in society might be, for example, the motive for the overreaction of a police officer. This may be necessary in order to refute a submission that invites the judge as trier of fact to presume truthfulness or untruthfulness of a category of witnesses, or to adopt some other form of stereotypical thinking. Yet it would not be acceptable for a judge to go further and suggest that all police officers should therefore not be believed or should be viewed with suspicion where they are dealing with accused persons who are members of a different race. Similarly, it is dangerous for a judge to suggest that a particular person overreacted because of racism unless there is evidence adduced to sustain this finding. It would be equally inappropriate to suggest that female complainants, in sexual assault cases, ought to be believed more readily than male accused persons solely because of the history of sexual violence by men against women. |
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If there is no evidence linking the generalization to the particular witness, these situations might leave the judge open to allegations of bias on the basis that the credibility of the individual witness was prejudged according to stereotypical generalizations. This does not mean that the particular generalization -- that police officers have historically discriminated against visible minorities or that women have historically been abused by men -- is not true, or is without foundation. The difficulty is that reasonable and informed people may perceive that the judge has used this information as a basis for assessing credibility instead of making a genuine evaluation of the evidence of the particular witness' credibility. As a general rule, judges should avoid placing themselves in this position. |
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[76] In this case, there was no basis upon which the court could safely conclude that Cst. Farrell was partial simply because he was a police officer or that he would otherwise be called as a witness for the prosecution. When testifying in this specific case, for example, cross-examination was not required in order to establish the grounds upon which Cst. Farrell relied for his s.254(3)(a)(i) C.C. demand. In addition, he readily acknowledged the Applicant’s initial request to consult counsel and that there had been no waiver of the right to counsel, either formally or informally, thereafter.
[77] It is important to consider the following features of the Charter, s.24 application which militate against a presumptive or conclusive right for the Applicant to cross-examine police officers testifying on the voir dire. These include the following:
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(a) |
Even prior to the scheduling of the trial (and, in any event, well prior to that date) the Applicant will have received full disclosure of the case for the prosecution. This includes all relevant police reports, statements and even investigative notes. It includes the statements of other witnesses to be called (and the statements or reports of others who may not even be called as witnesses). This impressive body of information will certainly restrict the ambit of any evidence given by a police officer called in the Charter voir dire and the need to challenge the witness on cross-examination. |
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(b) |
By way of contrast, a Respondent undertaking direct examination of a police witness on the Charter voir dire may have only a skeletal outline of the nature of any violation(s) alleged to have been committed (perhaps by that police witness). Quaere whether that fairly provides a basis upon which the Respondent can make full answer and defence to the allegation of constitutional wrongdoing and entitlement to a remedy. |
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(c) |
The Applicant is entitled to cross-examine a witness without any preliminary showing of hostility, adversity, partiality or even inconsistency. The assumption of partiality is problematic for reasons already noted. |
[78] As a general rule, witnesses called by the opposing party can be cross-examined. It must be borne in mind that the weight to be accorded that witness’ evidence may be affected by the manner in which it is elicited. If any ‘favorable’ evidence is elicited by the Respondent’s inappropriate use of leading questions, its weight will be attenuated accordingly. This, of itself, may be a sufficient internal regulator for cross-examination of a police officer by the Respondent. To use this case as an example, the Respondent’s cross-examination of Cst. Farrell was virtually indistinguishable from an examination-in-chief.
[79] The process of forcing the Respondent to call evidence first on the accused’s application to exclude evidence is unusual. To force that examination to be ‘in-chief’ and thereafter permit unqualified cross-examination of the witness by the Applicant based upon a presumption of bias or partiality is also unusual. It is difficult to see how this procedure comports with the “existing scheme of Canadian legal procedure” and/or is otherwise consistent with even a modified adversarial system.
[80] The overriding concern governing procedure for Charter, s.24 applications must be that it operate fairly. However, as Moldaver J. recently commented in R. v. Jesse, 2012 SCC 21: “… an accused is entitled to a fair trial, not a trial in which the playing field is tilted in his or her favour.” And, in the words of the Alberta Court of Appeal in R. v Thomas, 2012 ABCA 176 (at para.6): “It is true that the system of administration of justice must extend fairness to accused persons, but fairness is a two-way street.”.
Charter Procedure - The ‘General Rule’
[81] I emphasize that the procedure to be followed on a Charter, s.24 application is a matter within the discretion of the trial judge. The circumstances of each case may well dictate one mode of procedure being more desirable than another. Nevertheless, it is important that the potential Applicant or Respondent have some notion of the general or presumptive manner in which the Charter, s.24 application will proceed. This will facilitate matters such as scheduling, notice and the securing of witnesses.
[82] The ‘typical’ Charter, s.24 application (in the context of the impaired driving trial) should operate as follows:
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(i) |
Each party bearing a burden of proof (whether ultimate or evidentiary) must ensure that sufficient time is scheduled for proper litigation of the application. This estimate of time should be provided either at the time the trial is scheduled or at an alternate time well before the intended application. As the accused will bear the ultimate burden of proof on the application, he may well need to liaise with the prosecution to ensure that sufficient time is secured for the application over and above the time estimated for trial. |
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(ii) |
The Applicant must give to the Respondent and the court full and fair notice of any impending Charter, s.24 application. See: Bull. |
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(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. The investigating officer will be attending the trial whether subpoenaed by Applicant or the prosecution. 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. |
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(iv) |
Where any notice given fails to outline the evidence to be called in support of the application, a voir dire may not be permitted. The Applicant must satisfy the court that the available evidence warrants a separate proceeding. |
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(v) |
The Applicant will commence the voir dire, calling evidence in the form of witnesses or otherwise. |
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(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, there 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. |
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(vii) |
The Respondent is at liberty to cross-examine any witness called by the Applicant. |
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(viii) |
Once the Applicant has called its witnesses or otherwise submitted its evidence on the application, the Respondent will be called to present its case. |
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(ix) |
Once the evidence is complete, the party last calling evidence will make argument with a reply as required. |
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