R. v. Rivera (I.),

• Jurisdiction: Ontario
• Judge: Feldman, Lang and LaForme, JJ.A.
• Neutral Citation: 2011 ONCA 225
• Citation: 2011 ONCA 225,(2011), 277 O.A.C. 26 (CA),104 OR (3d) 561,277 OAC 26,104 O.R. (3d) 561,277 O.A.C. 26,(2011), 277 OAC 26 (CA)
• Date: 20 September 2010
• Court: Court of Appeal (Ontario)

R. v. Rivera (I.) (2011), 277 O.A.C. 26 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. MR.018

Her Majesty the Queen (respondent) v. Irma Rivera (applicant/appellant)

(C50432; 2011 ONCA 225)

Indexed As: R. v. Rivera (I.)

Ontario Court of Appeal

Feldman, Lang and LaForme, JJ.A.

March 23, 2011.

Summary:

The accused was convicted of refusal to comply with a demand for a breath sample without reasonable excuse under s. 254(5) of the Criminal Code. She appealed.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. A87, dismissed her appeal. The accused appealed.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - While attempting to provide a roadside breath sample, the accused made various statements to the police officer - After numerous failed attempts, the officer concluded that the accused was not genuinely trying to provide a sample and he charged her with refusal to comply with a breath sample demand without reasonable excuse - At trial, the accused claimed that she could not provide a suitable sample because she was having a panic attack - The trial judge convicted the accused - The Ontario Court of Appeal ordered a new trial where, inter alia, the summary conviction appeal court judge erred by failing to properly consider the accused's argument that the trial judge erred by relying on her silence at the roadside about experiencing a panic attack, violating her right to silence under s. 7 of the Charter - The trial judge's repeated reliance on her "silence" on the issue of the panic attack was not a proper consideration on the issue of her credibility - The court rejected the Crown's submissions that: (1) the right to silence jurisprudence on which the accused relied was not applicable because the onus was on the accused to establish a reasonable excuse for her failure to provide a sample; (2) an accused ought to make timely disclosure of that excuse to permit the police to address the issue; and (3) because the reasonable excuse was extraneous to the elements of the offence, when the accused's silence was used in assessing the credibility of her reasonable excuse, it was not used to prove guilt and thus s. 7 of the Charter was not violated - The choice to invoke the right to silence was irrelevant to any issue at trial - See paragraphs 108 to 123.

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - [See Civil Rights - Topic 3160 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See both Criminal Law - Topic 1386.4 ].

Criminal Law - Topic 60

Protection against self-incrimination - Silence affecting subsequent issue of credibility - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 136

General principles - Rights of accused - Right to silence - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - While attempting to provide a roadside breath sample, the accused made various statements to the police officer - After numerous failed attempts, the officer concluded that the accused was not genuinely trying to provide a sample and he charged her with refusal to comply with a breath sample demand without reasonable excuse - The accused was convicted - A summary appeal court judge dismissed her appeal - The Ontario Court of Appeal ordered a new trial where, inter alia, the trial judge improperly relied on certain statements that the accused made to the arresting police officer before receiving her right to counsel to undermine her credibility - The Crown submitted that the roadside statements in issue fit within the exception for evidence of the actus reus of the offence - That is, they constituted evidence that the accused was feigning an attempt to comply with the breath demand - The Crown further submitted that because the statements were not elicited or conscripted through questioning by the arresting officer, but were uttered spontaneously by the accused, the trial judge could use them in assessing her credibility - The court rejected the Crown's submissions - The trial judge's reasons indicated that the accused's roadside statements were not treated as evidence proving the actus reus of the offence - Further, the Crown's proposed characterization of their relevance stretched the concept of actus reus beyond its well-established meaning - Actus reus was simply the voluntary and wrongful act or omission that constituted a crime's physical components - If the accused had made a roadside statement relating directly to the refusal, the Crown could lead that evidence as establishing the actus reus - The accused's differing descriptions of the amount and type of alcohol she had to drink and her statements to the effect that she worked for the O.P.P., for example, could not - See paragraphs 48 to 98.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - While attempting to provide a roadside breath sample, the accused made various statements to the police officer - After numerous failed attempts, the officer concluded that the accused was not genuinely trying to provide a sample and he charged her with refusal to comply with a breath sample demand without reasonable excuse - The accused was convicted - A summary appeal court judge dismissed her appeal - The Ontario Court of Appeal ordered a new trial where, inter alia, the trial judge improperly relied on certain statements that the accused made to the arresting police officer before receiving her right to counsel to undermine her credibility - The court stated that "Where the statements are not admissible as evidence of the actus reus, but the Crown proposes to use them for purposes of challenging the accused's credibility, there is no need for a voir dire simply because such statements are inadmissible at the Crown's behest for that purpose. This is due to the trial fairness considerations ... there is no distinction for constitutional purposes between evidence used to incriminate an accused and evidence used to impeach. ... the appellant's roadside statements were not admissible as part of the Crown's case for incrimination or impeachment purposes. I agree with Molloy, J.'s, conclusion in Morrison [2006, Ont. Sup. Ct.] that roadside statements, whether made in direct response to an inquiry by an officer, or made in the context of the officer's overall inquiry while the motorist is detained, are not admissible for purposes of attacking the accused's credibility at a trial for failure or refusal to provide a breath sample. The admission of any roadside utterances as part of the Crown's case is forbidden other than on the basis of establishing grounds for the demand or the actus reus of the offence." - See paragraphs 104 to 107.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 5332

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Necessity and purpose of - The Ontario Court of Appeal stated that "where the making of a statement constitutes the very actus reus of the offence charged, a voir dire into voluntariness is not required. However, where the Crown seeks to rely on roadside statements of an accused to the police that are made without the right to counsel as evidence of the actus reus, the trial judge may be called upon to decide whether the proffered statements are evidence of this element of the offence before admitting them at the Crown's behest." - See paragraph 103.

Criminal Law - Topic 5339.5

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Where statement constitutes actus reus - [See both Criminal Law - Topic 1386.4 and Criminal Law - Topic 5332 ].

Criminal Law - Topic 5445

Evidence and witnesses - Evidence respecting the accused - Credibility - When Crown entitled to impeach accused's credibility - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The accused was convicted of refusing to comply with a demand for a breath sample without reasonable excuse - A summary appeal court judge dismissed her appeal - The accused sought leave to appeal on five grounds - Cronk, J.A., granted leave - The Crown argued that the accused only received leave to appeal on the two issues that Cronk, J.A., discussed, and the Court of Appeal had to be satisfied that the test for granting leave in R. v. R.R. (2008, Ont. C.A.) was met respecting the three remaining grounds - The Ontario Court of Appeal disagreed - The clear intention of Cronk, J.A.'s decision was to grant leave to appeal on all of the proposed grounds - Cronk, J.A., found it unnecessary to address the other grounds because of her view that the accused had, at a minimum, raised two grounds that satisfied the test for granting leave - Where leave to appeal was granted without restriction on the grounds of appeal raised on the leave motion, there was no need for the court to further consider the R. v. R.R. test on appeal - See paragraphs 34 to 44.

Cases Noticed:

R. v. R.R. (2008), 238 O.A.C. 242; 90 O.R.(3d) 641; 2008 ONCA 497, consd. [para. 36].

R. v. Morrison (A.), [2006] O.T.C. 372; 2006 CanLII 12722 (Sup. Ct.), appld. [para. 39].

R. v. Bijelic (M.), [2008] O.T.C. Uned. 798; 2008 CanLII 17564 (Sup. Ct.), refd to. [para. 39].

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, appld. [para. 48].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 28 O.R.(3d) 577 (C.A.), leave to appeal refused [1996] 3 S.C.R. xiii; 207 N.R. 78; 97 O.A.C. 159, appld. [para. 48].

R. v. Coutts (D.) (1999), 121 O.A.C. 342; 45 O.R.(3d) 288 (C.A.), appld. [para. 48].

R. v. Stapleton (1982), 66 C.C.C.(2d) 231 (Ont. C.A.), refd to. [para. 50].

R. v. Hanneson et al. (1989), 34 O.A.C. 352; 49 C.C.C.(3d) 467 (C.A.), refd to. [para. 50].

R. v. Richards (L.) (2004), 186 O.A.C. 378; 70 O.R.(3d) 737 (C.A.), refd to. [para. 53].

R. v. Ha (K.), [2010] O.A.C. Uned. 291; 2010 ONCA 433, refd to. [para. 53].

R. v. Thompson (N.) (2001), 141 O.A.C. 1; 52 O.R.(3d) 779 (C.A.), refd to. [para. 65].

R. v. Smith (J.M.) (1996), 88 O.A.C. 374; 28 O.R.(3d) 75 (C.A.), refd to. [para. 97].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89, refd to. [para. 101].

R. v. Calder (M.), [1996] 1 S.C.R. 660; 194 N.R. 52; 90 O.A.C. 18, refd to. [para. 105].

R. v. Ferron (1989), 49 C.C.C.(3d) 432 (B.C.C.A.), refd to. [para. 111].

R. v. Top (1989), 95 A.R. 195 (C.A.), refd to. [para. 111].

R. v. Moser (1992), 53 O.A.C. 145; 7 O.R.(3d) 737 (C.A.), refd to. [para. 112].

R. v. Poirier (J.) (2000), 133 O.A.C. 352 (C.A.), folld. [para. 114].

R. v. Rohde (R.) (2009), 264 O.A.C. 257; 246 C.C.C.(3d) 18 (C.A.), folld. [para. 115].

R. v. Palmer (K.), [2008] O.A.C. Uned. 559; 2008 ONCA 797, folld. [para. 117].

R. v. G.L. (2009), 250 O.A.C. 266 (C.A.), folld. [para. 118].

Counsel:

Marie Henein and Steven Skurka, for the appellant;

David Finley, for the respondent.

This appeal was heard on September 20, 2010, by Feldman, Lang and LaForme, JJ.A., of the Ontario Court of Appeal. LaForme, J.A., delivered the following decision for the court on March 23, 2011.