Digest: R v Bialski, 2018 SKCA 71

• Date: August 18, 2019

Reported as: 2018 SKCA 71

Docket Number: CACR 2912 , CA18070

Court: Court of Appeal

Date: 2019-08-18

Judges:

• Jackson
• Whitmore
• Ryan-Froslie

Subjects:

• Charter of Rights � Section 8, Section 11(b)
• Criminal Law � Appeal � Conviction
• Criminal Law � Appeal � Leave to Appeal
• Criminal Law � Self-represented Party � Assistance from Trial Judge
• Courts � Judges � Duties
• Statutes � Interpretation � Customs Act

Digest: The appellants appealed the dismissal of their summary conviction appeal. They were convicted of making false or deceptive statements to a Canada Border Services officer contrary to s. 153(a) of The Customs Act. One of the appellants was also convicted of attempting to evade payment contrary to s. 153(c). The appellants attempted to drive a motorhome registered in the United States from the United States into Canada. They advised officers that the motorhome was owned by their son and that they did not purchase anything in the 10 days they were in the United States. A search of the motorhome and its contents revealed communication: regarding the purchase of the motorhome; regarding the purchase of some bikes; and a bank draft that was possibly for the purchase of the motorhome. The motorhome was searched for a second time and a journal with an entry about buying the motorhome and additional emails regarding the purchase of the motorhome and bikes were located. Neither the appellants nor their two different lawyers leading up to trial ever raised possible Charter breaches. The appellants were self-represented at trial and at the summary conviction appeal. The appellants� grounds of appeal to the Court of Appeal were that: 1) the trial judge erred by failing to assist the self-represented appellants to �adjudicate� their ss. 8 and 11(b) Charter rights; 2) the appeal judge erred by failing to determine whether the self-represented appellants� ss. 8 and 11(b) Charter rights were violated; and 3) the appeal judge erred by failing to find a s. 8 Charter violation on the record before him.
HELD: The court did not grant leave to appeal on issues two and three of the appellants� appeal because they were not �compellingly meritorious� nor significant generally to the administration of justice. Leave was granted with respect to their first ground because it raised issues of trial fairness and miscarriage of justice. The appeal court concluded that the lack of Charter notice was not fatal to the appeal. The appeal court found the issue to be whether admissible uncontradicted evidence of a Charter breach was disclosed in the record. The appeal court concluded that the trial judge did not breach his obligation to the self-represented appellants by failing to assist them to bring forward their s. 8 Charter rights or by failing to bring breaches up on his own. There was no uncontradicted evidence of a s. 8 Charter breach. There was evidence that the appellants� computer and cellphones were searched without a warrant, but there was also evidence that the searches were conducted pursuant to s. 99 of the Act, which authorizes the search of electronic devices. Obiter, the appeal court noted that it would not have excluded the emails and texts if there...