



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2016 ONCA 964

DATE: 20161219

DOCKET: C59387

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Moore

Appellant

Breana P. Vandebeek, for the appellant

Lucas W. Schwalm, for the respondent

Heard: December 8, 2016

On appeal from the convictions entered by Justice J.
    Christopher Corkery of the Superior Court of Justice, sitting with a jury, on
    February 18, 2014.

ENDORSEMENT

[1]

We allowed this appeal and ordered a new trial for reasons to follow.
    These are our reasons.

Background

[2]

Following
a jury trial, the appellant was convicted of
    one count of dangerous driving causing bodily harm and one count of assault
    with a weapon, namely a motor vehicle.

[3]

The charges arose out a road rage incident
    involving the appellant, who was driving a car, and the driver of a van.
    Following a verbal altercation, the van driver followed the appellant's car and
    cut the appellant off near a stop sign. The van driver got out of the van and
    approached the appellant. The appellant initially reversed and then drove
    forward striking the van driver. It was the appellant's position that he was
    scared, tried to avoid hitting the van driver and the van, but lost control of
    his car. The Crown asserted that the appellant struck the van driver
    intentionally.

Issues

[4]

The appellant raises two issues on appeal.

[5]

First, the appellant argues that the trial judge
    erred in failing to find that the police breached his rights under s. 10(b) of
    the
Canadian Charter of Rights and Freedoms

and further erred in failing to exclude the evidence of his formal
    police interview under s. 24(2) of the
Charter
.

[6]

Second, the appellant submits that the trial
    judge erred in his charge to the jury concerning the standard of proof
.

Discussion

(1)

The
Charter
Issue

[7]

Following his arrest for dangerous driving, the
    appellant was able to contact and speak to duty counsel. However, the police
    officer who was going to conduct the formal interview later told the appellant
    that, in addition to the charge for dangerous driving causing bodily harm, he
    was also going to be charged with assault with a weapon. At that time, the
    appellant asked to contact his own lawyers. The interview officer attempted to
    contact the two lawyers named by the appellant. In the meantime, while waiting
    for a call back from the appellants counsel, the arresting officer told the
    interview officer that the appellant had agreed to, and did, speak to duty
    counsel after his arrest. Upon receiving this information, the interview
    officer concluded that the appellant had had an opportunity to consult with
    counsel and continued the interview.

[8]

While the trial judge acknowledged that, under
R.
    v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, the
    appellant would have been entitled to a second opportunity to speak to counsel
    had there been a change in the jeopardy he was facing, he found that the second
    charge did not constitute a change in jeopardy. Both charges arose from the
    same circumstances and the appellant was fully aware of those circumstances.
    Both offences carried the same maximum penalty. And while assault with a weapon
    is a hybrid offence, dangerous driving is a straight indictable offence.
    Further, various cases have made it clear that an accused person need not be
    made aware of the specific charge he or she faces:
R. v. Smith
, [1991] 1 S.C.R. 714, at pp. 14-15;
R. v. Latimer
, [1997] 1 S.C.R. 217, at para. 30.

[9]

In the alternative, the trial judge held that
    even if there had been a breach of the appellant's s. 10(b)
Charter
rights, the appellants statement should not be excluded under s. 24(2)
    of the
Charter
. The interview officer acted in
    good faith. He made efforts to contact that appellant's own lawyers and
    continued the interview only after being informed that the appellant had
    earlier spoken to duty counsel. In any event, the appellant had repeatedly
    stated that he wanted to tell his story to the police. The trial judge was
    satisfied that the outcome would not have been different had the appellant been
    given a further opportunity to speak to a lawyer.

[10]

In our view, in determining whether the
    appellants jeopardy had changed, the trial judge erred in focusing on the fact
    that the charges arose from the same circumstances, that the offences carried
    the same maximum penalty and that the new charge was a hybrid offence.
    Considered in the circumstances of this case, the assault with a weapon charge significantly
    increased the appellants alleged moral blameworthiness in relation to the
    charge in that it required proof that he acted intentionally to harm the van
    driver, rather than simply that his driving constituted a marked departure from
    the norm. This, in turn, markedly increased the potential penalty that the
    appellant faced.

[11]

The Crown argued that the appellant had received
    adequate advice from duty counsel that was sufficient for the new charge since
    the appellant stated in the interview that he had been told by duty counsel not
    to make a statement, but continued with the interview in any event. The Crown
    claimed that the appellant would have provided a statement regardless of any
    advice about the additional charge. We disagree. On the record in this case, it
    would be speculative to assume that the advice, and the accused's reaction to
    the advice, would necessarily have been the same. As we have said, the new
    charge of assault with a weapon was significantly different and carried more
    serious potential consequences than the original charge of dangerous driving causing
    bodily harm. Moreover, it is apparent from the accused's reaction to being
    informed of the new charge that he believed there was something amiss.
[1]
In the particular circumstances
    of this case, we conclude that the police breached the appellant's s. 10(b)
Charter
rights by failing to afford him a second opportunity to speak to
    counsel.

[12]

The trial judge, thus, erred in failing to find
    that the police breached the appellants rights under s. 10(b) of the
Charter
.

[13]

Further, the trial judge's s. 24(2)
Charter

analysis attracts no deference as he did not find a
    breach; nor did he consider all of the relevant
R. v. Grant
, 2009 SCC 32,
[2009] 2 S.C.R. 353
factors.

[14]

In our view, the admission of the evidence would
    have a negative impact on societys confidence in the justice system. We say
    this with specific regard to the three
Grant
factors.
    First, in terms of the seriousness of the
Charter
-infringing state conduct, depriving the appellant of access to counsel
    in the face of his increased jeopardy was serious. Second, this deprivation had
    a serious impact on the protected interests of the appellant, namely the appellant's
    right to make a meaningful and informed choice of whether to speak to the
    police. Third, with respect to societys interest in adjudicating the case on
    its merits, declining to admit the evidence does not undermine the ability of
    the prosecution to proceed. As noted by the Supreme Court in
Grant
, at
    para. 91, there is no absolute rule of exclusion for
Charter
-infringing statements. However, as a matter of practice, courts
    have tended to exclude such statements on the ground that admission on balance
    would bring the administration of justice into disrepute. For the reasons that we
    have explained we consider that to be the case here.

(2)

The Jury Instructions Issue

[15]

We did not call on the Crown to address the
    appellants second ground of appeal. Suffice it to say that we are not
    satisfied that the trial judge erred in his charge to the jury concerning the
    standard of proof.

Disposition

[16]

The appeal is allowed, the convictions are set
    aside and a new trial is ordered.

Janet Simmons J.A.

K. van Rensburg J.A.

B.W. Miller J.A.





[1]

The transcript of the appellants video statement to the
    interview officer demonstrates that upon being informed of the new charge of
    assault with a weapon the appellant said, That cant be right several times
    and stated, It wasnt an assault. It is also noteworthy that the appellant
    had a prior conviction for assault with a weapon.


