R. v. Dolynchuk (E.N.), 2004 MBCA 45

• Jurisdiction: Manitoba
• Judge: Huband, Steel and Hamilton, JJ.A.
• Neutral Citation: 2004 MBCA 45
• Citation: 2004 MBCA 45,(2004), 184 Man.R.(2d) 71 (CA),[2005] 11 WWR 70,184 CCC (3d) 214,22 CR (6th) 183,[2004] CarswellMan 144,[2004] MJ No 135 (QL),118 CRR (2d) 115,184 Man R (2d) 71,318 WAC 71,6 MVR (5th) 9,184 ManR(2d) 71,[2004] M.J. No 135 (QL),184 Man.R.(2d) 71,(2004), 184 ManR(2d) 71 (CA),318 W.A.C. 71
• Date: 17 October 2003
• Court: Court of Appeal (Manitoba)

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71 (CA);

    318 W.A.C. 71

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. AP.019

Her Majesty The Queen (appellant/appellant) v. Ernest Nicholas Dolynchuk (accused/respondent/respondent)

(AR 02-30-05396; 2004 MBCA 45)

Indexed As: R. v. Dolynchuk (E.N.)

Manitoba Court of Appeal

Huband, Steel and Hamilton, JJ.A.

April 14, 2004.

Summary:

The accused was charged with impaired driving. The trial judge held that the accused's admission that he was the driver was inadmissible as it was obtained by a violation of the accused's right to counsel (Charter, s. 10(b)). The Crown appealed.

The Manitoba Court of Queen's Bench, in a decision reported at 168 Man.R.(2d) 262, dismissed the appeal. The Crown appealed.

The Manitoba Court of Appeal, Huband, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - The police were investigating a report of an impaired driver - They used the vehicle's license plate number to get owner's name, etc. - They went to the driver's address, found the vehicle in an open outdoor parking lot and saw a staggering male in the proximity of the vehicle - The police asked the driver his name and it matched the name of the vehicle's registered owner - They then asked him if he had just got home after driving his vehicle - He said yes - He was acquitted of impaired driving - The Manitoba Court of Appeal held that the accused was psychologically detained when asked by police if he was driving the vehicle - The purpose of the question was to obtain incriminating statements - In the circumstances, there was cause to detain the accused - However, he should have been given his s. 10(b) Charter right to counsel information - A failure to do so violated the accused's Charter rights - See paragraphs 19 to 34.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police were investigating a report of an impaired driver - They used the vehicle's license plate number to get owner's name, etc. - They went to the driver's address, found the vehicle in an open outdoor parking lot and saw a staggering male in the proximity of the vehicle - The police asked the driver his name and it matched the name of the vehicle's registered owner - They then asked him if he had just got home after driving his vehicle - He said yes - He was acquitted of impaired driving - The Manitoba Court of Appeal held that the accused was detained and should have been given his s. 10(b) Charter right to counsel information - The statement was excluded pursuant to s. 24(2) as it was conscriptive, self-incriminatory evidence undiscoverable but for the infringement - The accused may not have spoken had the breach not occurred - Although the statement may not literally have been compelled by force or trickery, it would still render the trial unfair to admit the statement - See paragraphs 35 to 73.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Crown acknowledged that an accused's statement, like other evidence emanating from an accused, would presumptively be classified as conscriptive under the R. v. Stillman analysis - However, it argued that recent judgments had observed that this was not a universal rule - The Manitoba Court of Appeal agreed that automatic exclusion of conscripted evidence was not a universal rule (albeit applicable in the vast majority of cases) and that some evolution in the test seemed to be occurring - The court reviewed some case law which appeared to demonstrate that evolution - See paragraphs 46 and 62.

Cases Noticed:

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 12].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [paras. 15, 92].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [paras. 17, 81].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 18].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113; 2003 MBCA 38, refd to. [para. 19].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 19].

R. v. Caputo (E.) (1997), 98 O.A.C. 30; 114 C.C.C.(3d) 1 (C.A.), refd to. [para. 30].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161; 6 M.V.R.(4th) 248 (Sup. Ct.), refd to. [para. 31].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [paras. 38, 86].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 39].

R. v. Elshaw, [1991] 3 S.C.R. 24; 128 N.R. 241; 3 B.C.A.C. 81; 7 W.A.C. 81, refd to. [para. 40].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 40].

R. v. Clement (N.) (1995), 83 O.A.C. 226; 25 O.R.(3d) 230 (C.A.), refd to. [para. 41].

R. v. Wijesinha (W.K.K.), [1995] 3 S.C.R. 422; 186 N.R. 169; 85 O.A.C. 241, refd to. [para. 45].

R. v. Fliss (P.W.), [2002] 1 S.C.R. 535; 283 N.R. 120; 163 B.C.A.C. 1; 267 W.A.C. 1; 2002 SCC 16, refd to. [para. 45].

R. v. M.C.G. (2001), 160 Man.R.(2d) 131; 262 W.A.C. 131; 2001 MBCA 178, refd to. [para. 46].

R. v. Orbanski (C.) (2003), 173 Man.R.(2d) 132; 293 W.A.C. 132; 2003 MBCA 43, refd to. [para. 46].

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238; 285 W.A.C. 238; 2003 MBCA 1, refd to. [para. 46].

R. v. Mohl, [1989] 1 S.C.R. 1389; 95 N.R. 381; 77 Sask.R. 35, refd to [para. 53].

R. v. Dewald (W.) - see R. v. Pierman (M.B.).

R. v. Pierman (M.B.), [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146, refd to. [para. 53].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 53].

R. v. Richfield (D.) (2003), 175 O.A.C. 54; 178 C.C.C.(3d) 23 (C.A.), refd to. [para. 55].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 59].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 175 C.C.C.(3d) 290; 2003 ABCA 121, refd to. [para. 59].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81, refd to. [para. 60].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1, refd to. [para. 60].

R. v. Witts (L.J.) (1998), 126 Man.R.(2d) 211; 167 W.A.C. 211 (C.A.), refd to. [para. 66].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 68].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 88].

Authors and Works Noticed:

Delisle, R.J., Collins: An Unjustified Distinction (1987), 56 C.R.(3d) 216, p. 217 [para. 49].

Hogg, Peter W., Constitutional Law of Canada (2003 Student Ed.), pp. 890, 891 [para. 64].

Mahoney, Richard, Problems with the Current Approach to s. 24(2) of the Charter: An Inevitable Discovery (1999), 42 Crim. L.Q. 443, generally [para. 51].

Paciocco, David M., Stillman, Disproportion and the Fair Trial Dichotomy under Section 24(2) (1997), 2 Can. Crim. L.R. 163, p. 168 [para. 50].

Tanovich, David M., Making Sense of the Meaning of Conscriptive Evidence Following Stillman (1999), 20 C.R.(5th) 233, p. 234 [para. 65].

Counsel:

E. Szach, for the appellant;

I.Z. Isenstein, for the respondent.

This appeal was heard on October 17, 2003, by Huband, Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. The decision of the court was delivered on April 14, 2004, when the following opinions were filed:

Steel, J.A. (Hamilton, J.A., concurring) - see paragraphs 1 to 74;

Huband, J.A., dissenting - see paragraphs 75 to 97.