R. v. Hardy (S.R.)

• Jurisdiction: Manitoba
• Court: Court of Appeal (Manitoba)
• Judge: Monnin, Cameron and Mainella, JJ.A.
• Citation: 2015 MBCA 51,(2015), 319 Man.R.(2d) 121 (CA)
• Date: 08 December 2014

R. v. Hardy (S.R.) (2015), 319 Man.R.(2d) 121 (CA);

      638 W.A.C. 121

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.026

Her Majesty The Queen (respondent/respondent) v. Sean Robert Hardy (accused/appellant/appellant)

(AR 14-30-08159; 2015 MBCA 51)

Indexed As: R. v. Hardy (S.R.)

Manitoba Court of Appeal

Monnin, Cameron and Mainella, JJ.A.

May 14, 2015.

Summary:

The accused appealed his conviction for refusing to provide a breath sample by means of an approved screening device.

The Manitoba Court of Queen's Bench dismissed the appeal, essentially adopting the trial judge's reasons. The accused moved to extend the time to file a motion for leave to appeal and moved for leave to appeal. The Crown consented to the request for an extension of time.

The Manitoba Court of Appeal, per Cameron, J.A., in a decision reported at 306 Man.R.(2d) 95; 604 W.A.C. 95, granted an extension to apply for leave to appeal and granted leave to appeal on the following questions of law: "1. Did the appeal judge err by concluding that, where an accused alleges a breach of s. 9 of the Charter resulting from a warrantless arrest and detention pursuant to s. 497 of the [Criminal] Code, the onus is on the accused to show his detention was arbitrary? 2. Did the appeal judge err by holding that the continued detention of the accused was justified? What are the factors to consider and standards to be applied in continuing the detention of an accused on the ground that it is 'necessary in the public interest'?".

The Manitoba Court of Appeal dismissed the appeal.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with refusing to provide a breath sample by means of an approved screening device - He asserted that the decision of the police to detain him overnight breached his s. 9 Charter right not to be arbitrarily detained or imprisoned - The trial judge rejected the assertion and convicted the accused - An appeal judge adopted the reasons of the trial judge and dismissed the appeal - The accused appealed, asserting that where an accused alleged a breach of s. 9 as a result of a warrantless arrest and detention pursuant to s. 497 of the Criminal Code, any subsequent detention was presumed to be unreasonable and arbitrary and the legal burden shifted to the Crown to prove that the detention was not arbitrary - The Manitoba Court of Appeal held that the circumstances did not create a presumption of arbitrariness, thereby shifting the legal burden to the Crown such as in s. 8 Charter warrantless searches or Charter waiver cases - Unlike those exceptions, the alleged breach here was post-arrest - It did not involve circumstances where the breach might bear directly on the accused's innocence or guilt and it did not involve evidence statutorily required for proof of an offence - See paragraphs 15 to 44.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with refusing to provide a breath sample by means of an approved screening device - He asserted that the decision of the police to detain him overnight breached his s. 9 Charter right not to be arbitrarily detained or imprisoned - The trial judge rejected the assertion and convicted the accused - An appeal judge adopted the trial judge's reasons and dismissed the appeal - The accused appealed, asserting that the appeal judge erred in holding that the accused's continued detention was justified in the interest of the public (Criminal Code, s. 497(1.1)(a)) - The Manitoba Court of Appeal stated that where the accused had established that he was arrested without warrant and detained for 12 hours, the evidential burden shifted to the police/Crown to justify his detention pursuant to s. 497(1.1) - The trial judge accepted the police evidence that the accused was in an "emotional and agitated state", he was "belligerent and uncooperative with police", there was "evidence of consumption of alcohol and police formed a subjective belief the accused was intoxicated", and the accused was "acting in a manner inconsistent with his own best interests" - She rejected the accused's evidence, including his evidence that the police threatened him with jail overnight if he did not comply with the breathalyzer demand - That led to her determination that the detention was lawful under s. 497(1.1) - These were findings of fact that were open to her on the evidence - Contrary to the accused's assertion, there was no bright line obligation on the police to consider release to a sober third party in every instance or to allow an accused an opportunity to phone and look for someone to pick him or her up - Such analyses were contextual and fact driven - See paragraphs 45 to 59.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with refusing to provide a breath sample by means of an approved screening device - He asserted that the decision of the police to detain him overnight breached his s. 9 Charter right not to be arbitrarily detained or imprisoned - The trial judge rejected the assertion and convicted the accused - An appeal judge adopted the trial judge's reasons and dismissed the appeal - The accused appealed, asserting that even if his detention overnight was initially justified as being in the public interest (Criminal Code, s. 497(1.1)(a)), there had to be ongoing evaluation to determine whether those conditions continued to exist or whether there had been a change of circumstances such that s. 497(1) became engaged, mandating his release "as soon as practicable" - The Manitoba Court of Appeal rejected the assertion - Section 497 did not require that an accused be monitored during the 24 hours that he or she was detained prior to being taken before a justice - If a person was deemed acceptable for release prior to the expiry of 24 hours, that did not mean that s. 497(1) came into play mandating release "as soon as practicable" - On the other hand, it did not mean that once it was determined that an accused should be detained pursuant to s. 497(1.1), the detention had to necessarily last until the accused was brought before a magistrate pursuant to s. 503 - The police had to make an individual assessment based on all of the circumstances in each case - This did not prevent an accused from calling evidence to show that the length of the holding or continued detention was arbitrary - When an assertion of arbitrary detention by way of overholding was made, the analysis could include, among other things, an assessment of the nature and frequency of contact that the accused had with the authorities - Here, the accused called no evidence other than the fact that he was held overnight - In light of her credibility findings regarding the accused, the trial judge held that the decision to detain was not unreasonable - A palpable and overriding error had not been demonstrated - See paragraphs 60 to 66.

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - The accused was charged with refusing to provide a breath sample by means of an approved screening device - He asserted that the decision of the police to detain him overnight breached his s. 9 Charter right not to be arbitrarily detained or imprisoned and sought to have the proceedings stayed or, alternatively, the evidence regarding the refusal to provide a breath sample excluded - The trial judge held that there was no s. 9 breach and convicted the accused - An appeal judge adopted the reasons of the trial judge and dismissed the appeal - The accused appealed - The Manitoba Court of Appeal held that a s. 9 breach had not been established - Although there was no need to consider the remedy, the court noted that a judicial stay was not an appropriate remedy in circumstances such as this where the alleged conduct was post offence and post-investigation - A declaration of a Charter breach or a reduction in sentence were more appropriate remedies - See paragraphs 67 and 68.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 8373 ].

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - [See Civil Rights - Topic 8373 ].

Police - Topic 3085

Powers - Arrest and detention - Detention in the public interest - [See second and third Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Langlois (D.J.) (2008), 228 Man.R.(2d) 256; 427 W.A.C. 256; 2008 MBCA 72, refd to. [para. 11].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 13].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 14].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 16].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 25].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 26].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241, refd to. [para. 27].

R. v. Haas (T.) (2005), 201 O.A.C. 52; 76 O.R.(3d) 737 (C.A.), leave to appeal refused (2005), 349 N.R. 397; 215 O.A.C. 395 (S.C.C.), refd to. [para. 28].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 29].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 29].

R. v. Ross - see R. v. Leclair and Ross.

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. 29].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 30].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 31].

R. v. Berner (C.-A.) (2012), 329 B.C.A.C. 275; 560 W.A.C. 275; 2012 BCCA 466, leave to appeal denied (2013), 452 N.R. 393 (S.C.C.), refd to. [para. 31].

R. v. Davis (P.W.) (2013), 542 A.R. 100; 566 W.A.C. 100; 2013 ABCA 15, revd. [2014] 1 S.C.R. 78; 453 N.R. 117; 566 A.R. 1; 597 W.A.C. 1; 2014 SCC 4, refd to. [para. 32].

R. v. Hart (N.L.), [2014] 2 S.C.R. 544; 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 2014 SCC 52, refd to. [para. 32].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 34].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113; 2003 MBCA 38, folld. [para. 34].

R. v. Willis (R.) (2003), 173 Man.R.(2d) 208; 293 W.A.C. 208; 174 C.C.C.(3d) 406; 2003 MBCA 54, leave to appeal denied (2004), 333 N.R. 196 (S.C.C.), refd to. [para. 34].

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12; 486 W.A.C. 12; 2010 MBCA 38, refd to. [para. 34].

R. v. McIntosh (1984), 29 M.V.R. 50 (B.C.C.A.), refd to. [para. 35].

R. v. Pashovitz (1987), 59 Sask.R. 165 (C.A.), refd to. [para. 37].

R. v. Cutforth (1987), 81 A.R 213; 1987 ABCA 179, refd to. [para. 37].

R. v. Simms (A.P.) (2009), 460 A.R. 215; 462 W.A.C. 215; 2009 ABCA 260, refd to. [para. 37].

R. v. Weik (D.W.) (2012), 279 Man.R.(2d) 38; 2012 MBQB 138, refd to. [para. 38].

R. v. Iseler (R.) (2004), 191 O.A.C. 80 (C.A.), refd to. [para. 41].

R. v. Barron (W.D.), [2011] Man.R.(2d) Uned. 38; 2011 MBPC 37, refd to. [para. 50].

R. v. James (2011), 8 M.V.R.(6th) 253; 2011 NBPC 1, refd to. [para. 51].

R. v. Zacharias (S.) (2012), 407 Sask.R. 295; 2012 SKQB 491, refd to. [para. 51].

R. v. Salisbury (T.J.) (2011), 372 Sask.R. 242; 2011 SKQB 153, refd to. [para. 67].

R. v. Osiowy (D.L.) (2007), 221 Man.R.(2d) 222; 2007 MBPC 61, refd to. [para. 68].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 68].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 497(1), sect. 497(1.1) [para. 19].

Authors and Works Noticed:

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams' Canadian Criminal Evidence (5th Ed. 2014) (Looseleaf), vol. 3, para. 27:10 [para. 24].

Lederman, Sidney N., Bryant, Alan W., and Fuerst, Michelle K., The Law of Evidence in Canada (4th Ed. 2014), paras. 3.7, 3.19, 3.45, 3.47 [para. 24].

Scollin, John A., The Bail Reform Act: An Analysis of Amendments to the Criminal Code Related to Bail and Arrest (1972), p. 6 [para. 21].

Counsel:

M. Wasyliw, for the appellant;

C.P.R. Murray, for the respondent.

This appeal was heard on December 8, 2014, by Monnin, Cameron and Mainella, JJ.A., of the Manitoba Court of Appeal. Cameron, J.A., delivered the following judgment for the court on May 14, 2015.