R. v. Booker

2007 BCSC 456 R. v. Booker

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Booker, 2007 BCSC 456 Date: 20070330 Docket: 28933 Registry: Campbell River Between: Regina Respondent And Trevis Wayne Booker Appellant Before: The Honourable Madam Justice Ballance Reasons for Judgment Counsel for the Appellant: Richard C. Gibbs, Q.C. Counsel for the Respondent: M. Joyce DeWitt-Van Oosten Date and Place of Trial: November 2, 2006 Campbell River, B.C.

INTRODUCTION [1] This is an appeal by Trevis Wayne Booker of his conviction by a Provincial Court judge on 16 February 2005, of driving while prohibited contrary to s. 95(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the "MVA"). At trial, the appellant testified that he did not receive the Notice of Prohibition prohibiting him from driving. The only matter in dispute was whether the Crown had proved that the appellant knew he was prohibited at the time of his driving. The trial judge found as a fact that the appellant "knew full well of the prohibition" and on the whole of the evidence was satisfied of guilt beyond a reasonable doubt. [2] The appellant initially raised the following grounds of appeal: (1) the learned trial judge erred in fact and law in holding that the Crown had proved knowledge of the prohibition; (2) the learned trial judge erred in fact and law in utilizing a standard of proof of "more than likely" to assess the evidence, rather than proof beyond a reasonable doubt, in failing to consider whether a reasonable doubt emerged from the whole of the case and in failing to place the onus on the Crown to prove each element of the case. [3] The appeal was fully argued before this court and submissions made on May 29, 2006. Judgment was reserved. Before reasons for judgment on the appeal were delivered, the appellant filed a Notice under the Constitutional

Question Act, R.S.B.C. 1996, c. 68 seeking, as part of his appeal, to challenge the constitutionality of ss. 95(3) and (4) of the MVA on the grounds that they amount to a violation of the principles of fundamental justice guaranteed under section 7 of the Charter of Rights and Freedoms and the presumption of innocence guaranteed by section 11(d). On June 9, 2006 the appellant filed a notice of motion requesting that the constitutional issue be heard by the summary conviction appeal judge. The judge declined to hear the motion and directed that the appeal from conviction start anew before another member of the court. [4] The Crown takes the position that because the appellant has raised the constitutional issue for the first time on appeal, he must be granted leave in order to be permitted to do so. It contends that, on the authorities, the appellant is not entitled to raise a constitutional argument at this late stage of the proceedings and leave ought to be denied. The question of whether leave ought to be granted was the main issue before me at the hearing on November 2, 2006. At that time, Mr. Gibbs for the appellant clarified that if leave were denied, his client would abandon the appeal. [5] An important decision concerning the admission of new issues on appeal is articulated in the reasons of Lambert J.A. in R. v. Vidulich et al. (1989), 37 B.C.L.R. (2d) 391 (C.A.)

["Vidulich"]. In Vidulich the co-accused were convicted of possessing salmon and salmon roe not lawfully caught under the authority of a commercial fishing licence, of possessing salmon caught under the authority of a native food fishery licence contrary to certain regulations and of selling salmon roe caught during a closed time. They appealed their summary convictions, raising for the first time issues relating to the constitutionality of the applicable regulations. The summary conviction appeal court held that those issues could not be determined in the absence of relevant evidence. It set aside the convictions and ordered a new trial. The Crown appealed and the Court of Appeal restored the convictions. In an often quoted passage, Lambert J.A. held at paras. 24-27: It is perfectly proper to raise a supplementary argument on appeal that was not raised at trial, if the supplementary argument goes to an issue or ground that was itself raised at trial. But it requires leave of the court before an altogether new and independent issue or ground can be raised on appeal that was not raised at trial. The decision whether to grant leave is a matter for the discretion of the court. The exercise of the discretion will be guided by balancing the interests of justice as they affect all the parties. The rule is no different in criminal cases than it is in civil cases, though the balancing

of the interests of justice may have a different emphasis. An accused must put forward his defences at trial. If he decides at that time, as a matter of tactics or for some other reason, not to put forward a defence that is available, he must abide by that decision. He cannot expect that if he loses on the defence that he has put forward, he can then raise another defence on appeal and seek a new trial to lead the evidence on that defence. The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done, that a new ground is likely to be permitted to be raised on appeal. Such a new ground is more likely to be permitted where it raises an issue of law alone than where it requires the leading of evidence either in the appeal court or at a new trial. And in my opinion, the fact that the new ground is a ground about constitutionality does not make the exercise of the court's discretion depend on any different factors than where the new ground is a point about the interpretation or application of legislation. Of course, no court can be required to apply a legislative provision on the basis of an interpretation that it believes to be incorrect, or to apply a legislative provision which it is satisfied is unconstitutional. [6] In the B.C. Court of Appeal case of R. v. Perli, [1991]

B.C.J. No. 3121 (QL) (C.A.) [In Chambers] ["Perli"], Mr. Perli had been convicted under s. 217(4) of the MVA which requires the wearing of seatbelts, and under a regulation dealing with tire treads. Two of the points raised for the first time in the Court of Appeal, namely that the investigating officer acted both as prosecutor and as a witness and that no one should be forced to wear seatbelts, were recognized as raising arguments under the Charter. Mr. Perli insisted that he had wanted to raise these Charter arguments previously but contended that the atmosphere in the courts below had not been receptive to his doing so. [7] In coming to his decision, Hollinrake J.A. canvassed some of the jurisprudence on the matter of raising novel issues on appeal. He recalled R. v. Speerbecker (12 March 1986) Vancouver (B.C.C.A.), where Hutcheon J.A. said: In respect to the first issue, my view is that the issue is raised far too late in these proceedings. There was no question but that the issue was not raised before the Provincial Court judge, not raised before the summary conviction appeal judge and, indeed, does not appear in the notice of appeal. I make nothing of the latter point in particular, because the notice of appeal may be amended, but the cases are uniform that in the summary conviction appeals it is an exceptional case in which the ground of law will be allowed to be raised

in the Court of Appeal, and certainly they would not allow it to be raised where there may be facts available at the trial level which could bear on the rendering of a proper decision on the point of law. [8] In Perli, Hollinrake J.A. also referred to Mackay v. Manitoba, [1989] 2 S.C.R. 357, where Cory J. discussed the requirement for a factual basis upon which Charter issues can be decided. There, the appellant brought a Charter application alleging that the Elections Finances Act, which provided a scheme of reimbursement of election expenses to candidates and political parties, violated various fundamental freedoms. The appellant was unsuccessful at the lower levels where the courts made their decisions based on the Charter arguments advanced. At the Supreme Court of Canada, the appellant presented no evidence to establish a Charter breach. On that basis, the Court held that the appeal should be dismissed. At para. 8 Mr. Justice Cory stated: Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society. For example, issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individual will have to be considered by the courts. Decisions on these issues must be carefully considered as they will profoundly affect the lives of Canadians and all residents of

Canada. In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts. Based on these cases, Hollinrake J.A. dismissed Mr. Perli's application for leave to appeal on the ground that the constitutional issues had not been raised in the courts below. [9] Similarly, the B.C. Court of Appeal in R. v. Ericson (1991), 7 B.C.A.C. 241 concluded that an accused was not entitled to raise a constitutional issue for the first time on appeal. In that case, the police entered the accused's yard and looked through his window where they identified a stolen art print and then proceeded to obtain a search warrant. The accused was convicted of possession of stolen property. He did not raise the issue of unreasonable search and seizure at trial but attempted to raise it on appeal. In the end, the appeal was dismissed. It was held that the issue of unreasonable search and seizure did not involve a question of law alone, but turned in part

upon the facts, including those relating to the availability of alternative investigative methods and whether the police had reasonable and probable grounds for obtaining a warrant. The court reasoned that had the accused raised the issue at trial, the Crown would probably have introduced additional evidence, and hence the accused ought not to be entitled to raise the issue on appeal. [10] There have been instances of "exceptional" cases where a new issue was permitted to be raised for the first time on appeal after the Vidulich decision. In R. v. Brown, [1993] 2 S.C.R. 918 ["Brown"], the accused was convicted of first degree murder. A statement had been elicited from the accused by an undercover officer after the accused had expressed his choice to remain silent. At trial, no objection was raised about the admissibility of the conversation. After the trial decision, the Supreme Court of Canada released R. v. Hebert, [1990] 2 S.C.R. 151 where it was held that a statement elicited from an accused by an undercover officer violated s. 7 of the Charter. On appeal, the accused sought to argue that his s. 7 Charter rights had been violated by the undercover officers and thus the conversations should be excluded from the evidence. His appeal was dismissed by the Court of Appeal. In separate reasons, Harradence J.A. considered it would be unjust not to allow the accused to raise his

Charter argument on appeal because his counsel could not reasonably be expected to have foreseen the change in the law brought about by R. v. Herbert, supra. Citing with approval the reasoning of Harradence J.A., the majority of the Supreme Court of Canada overturned the Court of Appeal and ordered a new trial soley on the ground of the alleged violation of the accuseds' s. 7 rights. Even in the extraordinary circumstances present in Brown, Madam Justice L' Heureux-Dubé, in dissent, was not in favour of allowing the accused to raise his Charter argument at such a late stage. [11] Brown was followed in R. v. Ubhi (1996), 81 B.C.A.C. 161, ["Ubhi"]. In Ubhi, the accused was convicted of dangerous driving causing death and causing bodily harm. On appeal, he filed a notice under the Constitutional Question Act seeking, on his sentence appeal, leave to advance a constitutional issue which he had not asserted at trial namely, that the applicable Criminal Code sections should be struck down on the basis that they infringed multiple sections of the Charter. The Court of Appeal declined to hear the issue for the first time on appeal. In reaching its conclusion, the Court was guided by a number of authorities. [12] One of those authorities was R. v. Olson, [1993] B.C.J. No. 1344 (C.A.) where the Court of Appeal held at para. 16: The striking down of otherwise validly enacted legislation

is a serious matter which should not be approached in a casual or off-hand manner. Where a litigant seeks this extreme remedy, which goes to the heart of the division of powers between the legislature and the judiciary, the issue must be raised properly at trial. [13] Another authority surveyed in Ubhi was R. v. Fertal. (1993), 85 C.C.C. (3d) 411 (Alta. C.A.) ["Fertal"]. There the Alberta Court of Appeal had followed Brown, and held at pp. 415-416, that: [T]he latest authority on hearing Charter challenges for the first time on appeal is R. v. Brown (S.C.C., August 12, 1993), supra, which "substantially" adopts the reasons for judgment of Harradence J.A., 73 C.C.C. (3d) 481 at p.485ff, 127 A.R.

89. It appears to lay down two hurdles to raising such Charter issues for the first time on appeal. In the first place, the Charter issue must not be an issue which the defence could have raised at trial and chose not to. In Brown, it was shown that the law had radically reversed itself after the trial. At the time of the Brown trial, there was clear Supreme Court of Canada authority allowing the police to do just what they did: see pp. 489-90 of the Brown decision. As noted above, that is far from the case here. The second hurdle in Brown is that the necessary evidence to rule on the Charter issue must be before the court. [14] The court in Ubhi also found instructive the comments of Doherty J.A. in the Ontario Court of Appeal decision of R. v. R. (R.) (1994), 91 C.C.C. (3d) 193 at 198-99: Normally where an issue is not raised at trial it cannot be raised on appeal. Appellate courts sit in review of decisions made in trial courts. The requirement that issues be raised and adjudicated upon at trial before they will be considered on appeal is inherent in the appellate function. In R. v. Brown (1993), 83 C.C.C. (3d) 129 at pp.133-4, 105 D.L.R. (4th) 199, [1993] 2 S.C.R. 918 (S.C.C.), Madam Justice L'Heureux-Dubé expressed the philosophy underlying the general ban against entertaining issues on appeal that were not litigated at trial: ... the general prohibition against new

arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover society's expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted. [15] After referring to Brown and Fertal, Doherty J.A. continued: These cases amply demonstrate that not every development in the law will permit counsel to raise a new issue on appeal. Our law, particularly its common law component, is in constant metamorphosis. One must distinguish between incremental developments in the law which occur on an ongoing basis, usually at the initiative of counsel, as legal principles are applied to

particular fact situations, and fundamental restatements of the law which overrule established authority and send the law in a new direction. Only the latter gives cause to make an exception to the general principle that new issues cannot be raised on appeal. [16] In the view of the appellate Court in Ubhi, the appellant had not cleared either of the hurdles established in Brown and leave was denied. [17] The authorities establish that permission to raise new issues on appeal will not be granted lightly. An obvious rationale frequently expressed in the cases is the legitimate societal interest in the finality of litigation. The fact that the issue raised on appeal is a question of law is not, of itself, sufficiently compelling. According to Vidulich, Brown and Ubhi leave will only be given in "exceptional" cases meaning rare and extraordinary cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done. It will ordinarily not be granted where the defence could have raised the issue at trial and chose not to or where the necessary evidence to rule on the issue is not before the Court. [18] By no measure can the case at hand be characterized as "exceptional"; it is unremarkable. The appellant had ample opportunity to pursue the constitutional issue at trial and, for whatever reason, chose not to do so. The presumption of

knowledge of a driving prohibition was an issue which surfaced at trial. The defence chose to challenge the matter of the accused's knowledge by focusing on an alleged failure to comply with section 95(4) of the MVA, rather than attacking the constitutional validity of the applicable sections. As well, no evidence was put before the court below on matters of material relevance to the contextual and purposive analysis mandated by Charter litigation, including: the purpose of the impugned scheme, the intent of the provincial legislature in enacting these provisions, the difficulties of proof that ss. 95(3) and (4) seek to address, the feasibility of alternative methods of service that may have been open to the legislature and the imporance of ss. 95(3) and (4) to overall enforcement under the MVA. The appellant contends that such evidence is relevant not to the issue of whether there has been a Charter violation, but to the issue of whether such a violation ─ were it established ─ is justifiable under section 1. The appellant is willing to consent to the Crown adducing evidence and/or pertinent materials in the nature of a Brandeis brief, if the matter were to proceed to a section 1 analysis. It seems to me that even if the court were prepared to proceed in that manner, the appellant still faces the insurmountable hurdle that this case is unexceptional within the meaning of

Vidulich and the authorities following it . [19] Counsel for the appellant contends based on his interpretation of the comments of Lambert J.A. in Vidulich, that I should be satisifed at least on a prima facie level, of the unconstitutionality of the provisions of the MVA which the appellant challenges and that the interests of justice require that the constitutionality of those provisions be assessed by this court. First, I do not share counsel's construction of the remarks of Lambert J.A. or the Vidulich case generally in the manner he urges. Second, his logic is circuitous. Third, the appellant neglects to address head-on, the manner in which this case is, in any way, exceptional. [20] Leave is required and is denied. "S.K. Ballance, J." The Honourable Madam Justice S.K. Ballance