R v Kutynec

R. v. Kutynec

[1992] O.J. No. 347, 7 O.R. (3d) 277
Court of Appeal for Ontario — Brooke, Finlayson and Doherty JJ.A. | February 24, 1992

Background

Kutynec was charged with refusing to provide a breath sample under s. 254(5) of the Criminal Code. Police officers Herbert and Gary stopped him in what they described as a "well known drug driving parking lot" adjacent to a shopping complex. The officers watched Kutynec drive in, enter the complex briefly, then return to his car with the engine running. Officer Herbert approached to investigate suspected drug possession, noticed alcohol on Kutynec's breath, and called for an A.L.E.R.T. device. After three failed attempts to provide an adequate breath sample, Kutynec was arrested for refusing to comply with the demand.

At trial, the Crown presented its case through Officers Herbert and Woodburn. Defence counsel made no objection to any evidence during the Crown's presentation. Only after the Crown closed its case did defence counsel request a voir dire to establish that Kutynec had been arbitrarily detained contrary to s. 9 of the Charter, seeking to exclude all the evidence already heard under s. 24(2). The trial judge refused the request as "without merit or foundation," Kutynec called no evidence, and was convicted.

Issues

1. Did the trial judge err in refusing to permit a voir dire on the Charter application?
2. What procedures should courts follow for Charter applications to exclude evidence?

The Timing Problem with Charter Applications

The Court of Appeal upheld the trial judge's refusal to allow the voir dire, but more importantly, established crucial rules about when Charter applications must be brought. Justice Finlayson emphasized that objections to evidence admissibility — including Charter challenges — must be made "before or when the evidence is proffered," not after it's already been admitted. The Charter application to exclude evidence must precede the admission of the evidence.

The court rejected overly rigid procedural requirements suggested by the appeal judge, including mandatory pre-trial affidavits and written notice. However, they confirmed that trial judges can insist defence counsel state their position on Charter issues "either before or at the outset of the trial." The burden is on the accused to demonstrate a Charter violation exists — they can't simply sit back hoping something emerges from the Crown's case to create an argument.

In this case, there was no evidence Kutynec was even detained, let alone arbitrarily detained. The Crown's witnesses established he wasn't impaired and no drugs were found. Defence counsel couldn't point to any specific evidence that would support a Charter breach.

Key Takeaway

You can't wait until after the Crown closes its case to suddenly object to evidence on Charter grounds.

If you believe police violated your Charter rights, you need to raise this before or when the Crown tries to introduce the evidence, not as an afterthought. Courts won't let you turn trials into "fishing expeditions" looking for Charter violations.