R. v. Koma (R.M.), 2015 SKCA 92

• Judge: Jackson, Caldwell and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 08, 2014
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 92;(2015), 465 Sask.R. 188 (CA)

R. v. Koma (R.M.) (2015), 465 Sask.R. 188 (CA);

    649 W.A.C. 188

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. SE.004

Ryley M. Koma (appellant) And Her Majesty the Queen (respondent)

(CACR2455; 2015 SKCA 92)

Indexed As: R. v. Koma (R.M.)

Saskatchewan Court of Appeal

Jackson, Caldwell and Whitmore, JJ.A.

August 27, 2015.

Summary:

The accused was charged with impaired driving causing bodily harm (Criminal Code, s. 255(2)) and causing bodily harm while driving with a blood-alcohol level over the legal limit (s. 255(2.1)). He argued that (1) he provided information to the arresting officer under compulsion pursuant to the Traffic Safety Act and that information should not be admissible pursuant to his s. 7 Charter right against self-incrimination; (2) he was arbitrarily detained, contrary to s. 9 of the Charter; (3) he was not advised of the reasons for his detention, contrary to s. 10(a) of the Charter; (4) the arresting officer did not have objectively reasonable grounds to make an approved screening device (ASD) demand; (5) the arresting officer could not rely on the results on the ASD test in support of her demand for breathalyzer samples because she could not have been satisfied that the ASD was properly calibrated; (6) the arresting officer did not have reasonable grounds to believe that an offence had been committed within three hours of the breathalyzer demand; (7) his s. 10(b) Charter right to counsel was violated; (7) the Crown failed to prove that a true copy of the Certificate of Analyses was served on him; and (8) if any Charter breach was found, the appropriate remedy was exclusion of the Certificate of Analyses.

The Saskatchewan Provincial Court, in a decision reported at (2014), 445 Sask.R. 281, found that the accused's ss. 9 and 10(a) Charter rights were violated, but otherwise rejected the accused's arguments. The court declined to exclude the evidence under s. 24(2). Just before pronouncing its verdict, the court, acting on its own motion, amended the information by altering the description of the s. 255(2.1) offence such that it no longer called for proof of a causal link between the accused's blood-alcohol level and the bodily harm done to the victim. Instead, the Crown only had to establish a temporal link between the accused's operation of a motor vehicle while his blood-alcohol level exceeded the legal limit and the occurrence of the accident that resulted in bodily harm to the victim. The court acquitted the accused of the s. 255(2) offence and entered a conviction on the amended count under s. 255(2.1). The accused appealed, arguing that the trial judge (1) did not have the power to amend the information, and even if she did, she should not have exercised it in the circumstances; and (2) erred in her analysis under s. 24(2) of the Charter.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer responded to a traffic accident involving Koma - The officer began an investigative detention because she suspected that Koma might have been driving while impaired based on the following: (1) Koma admitted that he had consumed alcohol many hours earlier; (2) Koma had enlarged pupils; (3) Koma smelled strongly of cologne which the officer believed might be used to mask the smell of alcohol; (4) when the officer asked Koma to turn off his cell phone, Koma shut off the application he was using but did not "power off" the phone; and (5) there had been a serious accident - Koma was charged with, inter alia, causing bodily harm while driving with a blood-alcohol level over the legal limit - The trial judge, although finding Koma guilty, held that his ss. 9 and 10(a) Charter rights were violated - The observations that formed the basis for the officer's suspicion were all equivocal - No problems were observed with Koma's dexterity or ability to converse - The officer acted on a hunch - Thus, the detention was not lawful - The impropriety was compounded by the fact that Koma was not advised of the reason for the detention - On Koma's conviction appeal, the Crown argued that the trial judge erred in finding a violation of ss. 9 and 10(a) - The Saskatchewan Court of Appeal upheld the trial judge's conclusions - There was no Charter-compliant statutory or common law authority which empowered the officer to detain Koma - While it might have been reasonable to presume that Koma had a general understanding of why he was being detained given the circumstances, the officer never actually told Koma why he was being detained - See paragraphs 71 to 96.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer responded to a traffic accident involving Koma - The officer began an investigative detention because she suspected that Koma might have been driving while impaired based on the following: (1) Koma admitted that he had consumed alcohol many hours earlier; (2) Koma had enlarged pupils; (3) Koma smelled strongly of cologne which the officer believed might be used to mask the smell of alcohol; (4) when the officer asked Koma to turn off his cell phone, Koma shut off the application he was using but did not "power off" the phone; and (5) there had been a serious accident - The trial judge, before convicting Koma of causing bodily harm while driving with a blood-alcohol level over the legal limit, held that Koma's ss. 9 and 10(a) Charter rights were violated but declined to exclude the results of the approved screening device or breathalyzer under s. 24(2) - The Saskatchewan Court of Appeal dismissed Koma's appeal - The s. 9 violation was moderately serious (negligent disregard), but was made in good faith - The s. 10(a) violation was quite serious and no good faith could be claimed, as Koma's rights were wholly disregarded - The impact of the breaches on Koma's Charter-protected interests was fleeting and technical - It would breed public cynicism and bring the administration of justice into disrepute if reliable and critical evidence were excluded - Excluding the evidence would also render the trial unfair from the public perspective - See paragraphs 103 to 126.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Koma was charged with, inter alia, causing bodily harm while driving with a blood-alcohol level over the legal limit - He applied for the exclusion of evidence under s. 24(2) of the Charter on the basis of various Charter violations - The trial judge held that Koma was arbitrarily detained (s. 9) and not advised of the reasons for his detention (s. 10(a)), but declined to exclude the evidence - Koma appealed - The Saskatchewan Court of Appeal held that the trial judge made two errors which called for a fresh s. 24(2) analysis - First, the trial judge concluded that the s. 10(a) breach was "very serious" and that the s. 9 breach was "less serious" - A s. 10(a) breach never arose without a corresponding detention - Presumably, the nature and seriousness of the detention would inform the nature and seriousness of the s. 10(a) breach - Thus, the trial judge should have considered the s. 9 breach before embarking on an analysis of the s. 10(a) breach - Second, the trial judge plainly found no violation of s. 7, yet the bulk of her reasoning under the second leg of the Grant analysis addressed an issue which directly invoked s. 7 (statutorily compelled statements) as opposed to s. 9 or 10(a) - See paragraphs100 to 102.

Criminal Law - Topic 1400

Motor vehicles - Impaired driving causing death or bodily harm - Evidence and proof - The Saskatchewan Court of Appeal held that a conviction under s. 255(2.1) of the Criminal Code required proof beyond a reasonable doubt that an individual, while operating or in care or control of a motor vehicle, had a blood-alcohol level exceeding the legal limit and caused an accident that resulted in bodily harm to another - The Crown was not required to prove that the individual's blood-alcohol level caused the accident - See paragraphs 25 to 32.

Criminal Law - Topic 1403

Motor vehicles - Impaired driving causing death or bodily harm - Where blood-alcohol content exceeds legal limit - [See Criminal Law - Topic 1400 ].

Criminal Law - Topic 4270

Procedure - Indictment - Amendment - General - The Saskatchewan Court of Appeal reviewed the authority of a judge to amend a defective indictment or count under s. 601 of the Criminal Code - The court stated that "The provisions of s. 601 are drafted broadly enough to encompass all manner of defect in the pleading of a count in an indictment, namely, a defect apparent on the face of an indictment, a variance between the evidence and a count, an error in the name of the governing statute, a failure to state or a defective statement of anything requisite to constitute the offence, a failure to negative an exception, any other defect in substance and a defect in form. ... I conclude that the criminal courts enjoy broad authority to make any necessary amendment to an indictment or a count thereof and a trial court must make the necessary amendment where the evidence adduced before the court appears to disclose an error in the pleading of a count, unless the accused has been misled or prejudiced in his or her defence or, having regard for the merits of the case, the proposed amendment cannot be made without injustice being done. I favour this interpretation because it also avoids the possibility of a second judge reaching a different conclusion on the same issues and on the same evidence by reason of a technical error in the pleading of a count; a possibility which could bring the repute of the administration of justice into question." - See paragraphs 37 to 56.

Criminal Law - Topic 4271

Procedure - Indictment - Amendment - Circumstances permitting - Koma was charged under s. 255(2.1) of the Criminal Code that he did "operate a motor vehicle while his [blood-alcohol level exceeded the legal limit] and did thereby cause bodily harm to [the victim]" - Just before pronouncing her verdict, the trial judge, acting on her own motion, amended the information to provide that Koma "while operating a motor vehicle having consumed alcohol in such quantity that [his blood-alcohol level exceeded the legal limit] did cause an accident resulting in bodily harm to [the victim]" - As a result of this amendment, the Crown only had to establish a temporal link, not a causal link, between Koma's operation of a motor vehicle while his blood-alcohol level exceeded the legal limit and the occurrence of the accident that resulted in bodily harm to the victim - Koma appealed his conviction, arguing that the trial judge did not have the power to amend the information, and even if she did, she should not have exercised it in the circumstances - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge amended the information so that it would conform to the language of s. 255(2.1) - She had the authority to amend the information under either s. 601(3)(b)(i) (count failed to state or stated defectively something necessary to constitute the offence) or s. 601(3)(c) (count was defective in form) - The amendment did not change the root circumstances or gravamen of the offence; it merely affected the characterization of what the Crown was legally required to prove - The information reasonably informed Koma of the offence such that he was in a position to properly defend himself - As to prejudice, Koma did not satisfactorily explain how the erroneous wording had influenced in any way the strategic choices he made in the conduct of his defence - See paragraphs 33 to 70.

Criminal Law - Topic 4723

Procedure - Information or indictment - Charge or count - Indictable offences - Amendment - General - [See Criminal Law - Topic 4270 ].

Criminal Law - Topic 4730

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - General - [See Criminal Law - Topic 4271 ].

Criminal Law - Topic 4736

Procedure - Information or indictment - Charge or count - Indictable offences - Amendment of - After close of trial or on appeal - [See Criminal Law - Topic 4271 ].

Police - Topic 2241

Duties - Duty to inform persons under investigation - General principles - [See Civil Rights - Topic 3603 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 26].

R. v. Carver (K.B.) (2013), 558 A.R. 50; 2013 ABPC 140, refd to. [para. 28].

R. v. Powell, [1965] 4 C.C.C. 349 (B.C.C.A.), refd to. [para. 35].

R. v. Callocchia (T.) and D'Angelo (G.) (2000), 149 C.C.C.(3d) 215 (Que. C.A.), refd to. [para. 35].

R. v. Cater (K.) (2014), 349 N.S.R.(2d) 225; 1101 A.P.R. 225; 314 C.C.C.(3d) 359; 2014 NSCA 74, refd to. [para. 35].

R. v. S.D.R. (1996), 155 N.S.R.(2d) 391; 457 A.P.R. 391 (C.A.), refd to. [para. 35].

York (Regional Municipality) v. Winlow (2009), 265 O.A.C. 326; 99 O.R.(3d) 337; 2009 ONCA 643, refd to. [para. 35].

R. v. Morozuk, [1986] 1 S.C.R. 31; 64 N.R. 189, refd to. [para. 35].

R. v. Wildefong (1970), 1 C.C.C.(2d) 45 (Sask. C.A.), refd to. [para. 44].

R. v. McConnell (D.R.) (2005), 197 O.A.C. 177; 75 O.R.(3d) 388 (C.A.), refd to. [para. 45].

R. v. Edgar and Rea (1962), 132 C.C.C. 396 (B.C.C.A.), refd to. [para. 45].

R. v. Moore, [1988] 1 S.C.R. 1097; 85 N.R. 195, refd to. [para. 48].

R. v. A.G.W., [1993] 1 S.C.R. 3; 146 N.R. 141; 103 Nfld. & P.E.I.R. 48; 326 A.P.R. 48, refd to. [para. 49].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 50].

R. v. Irwin (R.) (1998), 107 O.A.C. 102; 38 O.R.(3d) 689 (C.A.), refd to. [para. 51].

R. v. A.L.E. (2009), 359 Sask.R. 59; 494 W.A.C. 59; 2009 SKCA 65, refd to. [para. 66].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 72].

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. 76].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 78].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 78].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 78].

R. v. Houben (K.), [2007] 2 W.W.R. 195; 289 Sask.R. 118; 382 W.A.C. 118; 2006 SKCA 129, refd to. [para. 81].

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. 81].

R. v. Lux (L.) (2012), 405 Sask.R. 214; 563 W.A.C. 214; 2012 SKCA 129, refd to. [para. 81].

R. v. Schell (A.J.) (2006), 289 Sask.R. 138; 382 W.A.C. 138; 214 C.C.C.(3d) 62; 2006 SKCA 128, refd to. [para. 81].

R. v. Anderson (J.) (2014), 433 Sask.R. 255; 602 W.A.C. 255; 308 C.C.C.(3d) 11; 2014 SKCA 32, refd to. [para. 81].

R. v. Papilion (J.) (2014), 438 Sask.R. 37; 608 W.A.C. 37; 311 C.C.C.(3d) 423; 2014 SKCA 45, refd to. [para. 81].

R. v. Schaeffer (D.B.) (2005), 257 Sask.R. 219; 342 W.A.C. 219; 194 C.C.C.(3d) 517; 2005 SKCA 33, refd to. [para. 81].

R. v. Waterfield, [1963] All E.R. (C.A.), refd to. [para. 86].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 94].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 98].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 98].

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. [para. 98].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 98].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 98].

R. v. Berner (C.-A.) (2012), 329 B.C.A.C. 275; 560 W.A.C. 275; 2012 BCCA 466, refd to. [para. 105].

R. v. Lomenda (D.G.), [2014] 7 W.W.R. 525; 440 Sask.R. 222; 2014 SKQB 77, affd. (2015), 457 Sask.R. 326; 632 W.A.C. 326; 2015 SKCA 40, refd to. [para. 106].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 111].

R. v. Taylor (J.K.), [2014] 2 S.C.R. 495; 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 2014 SCC 50, dist. [para. 115].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 255(2.1) [para. 25]; sect. 601(3)(b)(i), sect. 601(3)(b)(ii), sect. 601(3)(c) [para. 34].

Counsel:

Nathan Whitling, for the appellant;

W. Dean Sinclair, Q.C., for the respondent.

This appeal was heard on December 8, 2014, before Jackson, Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Caldwell, J.A., delivered the following judgment for the court on August 27, 2015.