ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ROBERT GEORGE MANUEL
Before Justice Jeanine E. LeRoy
Heard on March 20, 2012 and May 11, 2012
Reasons for Judgment released on June 15, 2012
Mr. John Hanbidge for the Crown
Mr. George Christakos for the accused Robert Manuel
LeRoy J.:
INTRODUCTION
On July 23, 2010, Mr. Robert Manuel was charged with the offence of operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code of Canada (the “Code”), and operation of a motor vehicle with a blood-alcohol content exceeding eighty milligrams of alcohol in one hundred millilitres of blood, contrary to section 253(1)(b) of the Code.
At his trial, Mr. Manuel admitted he was guilty of those charges.
His counsel argued, however, that a stay of proceedings ought to be imposed on the basis that Mr. Manuel was arbitrarily detained for a show cause hearing and unreasonably strip searched upon his subsequent arrival at the detention centre to await his show cause hearing contrary to sections 9 and 8, respectively, of the Canadian Charter of Rights and Freedoms (the "Charter"), He further argued that Mr. Manuel’s right to be informed of the reason for his detention (ie. for a show cause hearing) and his right to be informed of his right to counsel as provided for in sections 10(a) and (b) of the Charter were violated when he was not given those rights after the police decided he would be held for a show cause hearing.
For the reasons that follow, I find that the police violated Mr. Manuel’s rights as provided for in Sections 8, 9, 10(a) and 10(b) of the Charter and that a stay of proceedings is the appropriate remedy in the circumstances.
FACTS
At the trial, a manager of a local pizza shop, Chris Winchur, testified that on July 23, 2010, his observations of Mr. Manuel (both before and while driving) caused him to conclude that Mr. Manuel was "very, very intoxicated" and lead him to call the police.
Police Officer, Ben Husch, of the London Police Service, was dispatched to that call. He testified that when he spotted the vehicle described by Mr. Winchur a having a Northwest Territories (the “NWT”) licence plate, he found Mr. Manuel slumped over in the driver's seat. The keys to the vehicle were on found by Officer Husch on the front passenger seat and the car was turned off. The officer observed several indicia of impairment from Mr. Manuel including, slow movements, difficulty producing his driver’s license, stumbling, a fairly strong odour of alcohol, unsteadiness on his feet, swaying, tripping, and leaning on the police cruiser.
Officer Husch arrested Mr. Manuel for impaired driving and read him his rights, the caution and the demand for a breath sample. Mr. Manuel indicated he understood what the officer read to him, and stated, "well, I am impaired obviously".
Officer Husch testified that Mr. Manuel said he was from the NWT and planned to go back there shortly. The officer could not recall what Mr. Manuel was doing in Ontario at the time nor what Mr. Manuel replied when he was asked by the officer, "where do you live?”. The officer was able to recall that Mr. Manuel said he visited Ontario twice a year and that he has family here in Ontario or “something to that effect.” Officer Husch testified that he felt Mr. Manuel was being truthful, wasn't "playing games", and recognized that the police "have a job to do".
Office Husch testified that Mr. Manuel asked him if he would be in jail overnight and Officer Husch said it would depend on the results of his breath tests. Officer Husch further testified that people facing similar charges typically would be released on a Promise to Appear if there were no extenuating circumstances. However, since Mr. Manuel indicated he was planning to return home in a couple of days, Officer Husch testified that "our concern was that he would leave the province and never be detected in the NWT". He reiterated, "I would have some concerns if he lived that far away". Later in his testimony, he described those concerns as "serious" even though Mr. Manuel was 59 years old, polite, respectful and did not have a criminal record.
London Police Officer Matthew Shepherd testified that he is a qualified breath technician who conducted the analysis of Mr. Manuel’s breath samples. The result of the first test was 145 mg of alcohol in 100 ml of blood. The result of the second test was 134 mg of alcohol in 100 ml of blood. Officer Shepherd noted Mr. Manuel exhibited indicia of impairment including a strong odour of alcohol on his breath, unsteadiness on his feet, stumbling, and using the table and wall to support himself. As a result, in Officer Shepherd's opinion, Mr. Manuel was "severely intoxicated due to alcohol."
Despite this level of intoxication, Officer Shepherd testified that Mr. Manuel was polite, very cooperative, respectful of “the police and the law in general”, and compliant throughout the testing. Officer Shepherd even went so far as to say "it was a pleasure to have him [Mr. Manuel] there".
Officer Shepherd testified that Mr. Manuel told him that when he was arrested he was driving from the residence of a relative to find a place to stay at a hotel/motel or “something to that effect “, and that he was thinking of travelling to Windsor or Toronto that evening. Officer Shepherd agreed that he "seemed to recall" that Mr. Manuel told him that he was in London to visit his grandson and daughter. Officer Shepherd confirmed he had a note in his notebook that Mr. Manuel was visiting family.
Officer Shepherd stated that when he was asked by Mr. Manuel, "what the formality would be from here?", Officer Shepherd responded that he would "get him [Mr. Manuel] to do a couple of tests, a little bit of paperwork and that would be that.” He further testified that what he meant by those words was they would do the testing and then go from there – “step by step”. It was not his intention to suggest whether release would occur or not when he used the words “that would be that”. He testified at trial that that it would be up to the Sergeant in cells whether or not Mr. Manuel would be released.
Sergeant Glen Hadley of the London Police Service testified that on the date in question he was the supervisor of the cells detention area at the police station. Sgt. Hadley stated, "I guarantee you he [Mr. Manuel] was not releasable" because he lived in the NWT, seven hours outside of Yellow Knife ,which meant he would have ample opportunity to return to the NWT and not return to Middlesex County. As a result, Sgt. Hadley decided Mr. Manuel needed to be held for a show cause hearing in order for a court to decide whether or not to release him.
In cross examination, Sgt. Hadley admitted he was aware of ss. 498(1)(d) and ss. 498(1.1)(b) of the Code and relied on the latter subsection to detain Mr. Manuel. Sgt. Hadley admitted that it was possible he asked Mr. Manuel if he would show up at court, but he couldn't say for sure. He noted, however, that the value of the answer would be limited given that he lives "phenomenally far away”.
Sgt. Hadley noted that there is no London Police Service policy for release in these circumstances. The decision to release or not is dependent upon the facts of each and every case. Sgt. Hadley was not aware of what the practice is in other jurisdictions.
In this case, it was Sgt. Hadley’s opinion that because Mr. Manuel lived in the NWT the prospect of getting police to get him would be "very difficult", and a surety would not satisfy this concern. Although Sgt. Hadley was "not sure" how the decision was made regarding detention -- he testified he was not sure whether the Investigating Officer decided and he agreed or whether he made the decision or somehow the two of them came to a meeting of the minds on the issue -- he was clear that the only reason Mr. Manuel was detained was because of where he lived.
Before finishing the crown’s case, the crown admitted that Mr. Manuel suffered from a heart condition at the time of his arrest. Indeed, Mr. Manuel indicated same to Sgt. Hadley at the time he was booked into the cells and Officer Husch testified that another officer obtained Mr. Manuel’s medication for him.
Mr. Manuel testified that he is now 60 year olds, and for the past 8 years he has lived and taught in the NWT. Having lived in Windsor for most of his life, Mr. Manuel still considered Ontario his home. Mr Manuel testified that his son lived in Toronto, his daughter and her husband and two children lived in London, and his step parents lived in Windsor. He came to Ontario twice yearly -- every Christmas and every summer. Prior to the date in question, he and his wife were in Ontario looking for a house. The plan was that he would work for one more year in the north and then they would retire in Ontario.
Mr. Manuel did not recall being asked by police about family or other attachments to Ontario. He further testified that he was never asked if he would come back to court. He asked the police about being in the cells overnight because he believed that when people in his situation sober up they are released. He was concerned about this because he had to return to the NWT to teach by August 25, 2010. He couldn’t understand why the police made him, a Canadian citizen, feel like he was from another planet. He wondered aloud as he testified why he would “run” given that he was a professional with ties to Ontario and given that there is an RCMP detachment near where he lives.
Mr. Manuel testified he was strip searched at the jail after appearing before the court by video. During the search he felt “pretty alienated”, “like a real criminal”, and “hopeless and helpless”. He was concerned about his heart condition at the time and felt “somewhat intimidated” by his cell mate.
Mr. Manuel was not cross examined by the Crown.
DEFENCE SUBMISSIONS
Counsel for the Defence argued that Mr. Manuel’s rights as protected by Sections 8, 9 and 10(a) and 10(b) of the Charter were breached and that the appropriate remedy was a stay of proceedings. He argued that Mr. Manuel was arbitrarily detained contrary to section 9 of the Charter when the police refused to release him solely because he lived in the NWT. The Defence argued that the police did not have reasonable grounds to believe that Mr. Manuel would fail to attend court based solely on his address given that Mr. Manuel identified himself verbally to police, gave his address, provided his driver’s license, and police had some knowledge of his having relatives locally.
Counsel for the Defence further argued that, because Mr. Manuel was arbitrarily detained, the strip-search he underwent at the jail following his detention was a violation of section 8 of the Charter. He also argued that when the police failed to advise Mr. Manuel he was being detained for a show cause hearing and failed to provide him with his rights to counsel thereafter they violated his Charter rights as provided for in sections 10(a) and 10(b) of the Charter respectively. He argued that there is precedent for requiring the police to advise Mr. Manuel of the reason for his detention and to re-warn him of the right to counsel not only when the risk of conviction changes, but when the reason for detention changes, including detention for a show cause hearing as occurred in this case.
And finally, Defence counsel argued that this was one of the clearest cases for a stay of proceedings because of the cumulative effect of the breaches and no other remedy could redress the injustice and prejudice suffered by Mr. Manuel. He put it this way – individuals in society need to know that if their parent or grandparent visits Ontario from another province or territory and gets into trouble for the first time they will be released from custody to deal with their charges in the absence of some evidence, beyond simply an out of province address, that they will fail to attend court.
CROWN SUBMISSIONS
The Crown argued that based on the constellation of information the police had at the time, namely, that Mr. Manuel was from the NWT, that he was planning to return there in a couple of days to teach, that he was only visiting his daughter in Ontario, and that he planned to go to another hotel in Kitchener or Toronto that night, the police had sufficient grounds to detain Mr. Manuel for show cause pursuant to ss. 498(1.1) of the Code.
The Crown argued that there was no arbitrary detention. The police were acting pursuant to the statute based on the information they had at the time, and if there was no arbitrary detention then the other defence arguments must fail. The Crown also argued that this was not the clearest of cases as required to grant a stay of proceedings because pursuant to the decision in R. v. Iseler, 2004 34583 (ON CA), [2004] O.J. No 4332 (C.A.) the breach of section 9 Charter rights occurred post offence and had nothing to do with the investigation and the gathering of evidence against an accused so it did not impact on trial fairness, and because there was no evidence before the court that this was a systemic issue that might impact others in the future.
THE LEGISLATION
Section 498(1) of the Code provides:
Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody...and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,
d) If the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometers of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.
Subsection 498(1.1) provides as follows:
The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds...
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.
Section 9 of the Charter provides that everyone has the right to be secure against arbitrary detention or imprisonment at the hands of the State.
Section 10 of the Charter provides that everyone has the right on arrest or detention...
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct counsel without delay and to be informed of
that right...
ANALYSIS
Charter - Section 9 - Arbitrary Detention
Issue: Did the police have reasonable grounds to believe that if Mr. Manuel was released from custody he would fail to attend court?
The evidence of the police officers was clear that Mr. Manuel was detained in custody on the grounds that he would not attend court for the sole reason that he lived in the NWT. Under s. 498(1)(d) of the Code, it is contemplated that a person arrested without a warrant who does not ordinarily reside in the province shall be released as soon as practicable by the officer in charge in accordance with those provisions unless one of the exceptions in section 498(1.1) applies. This issue in this case is whether an address in the NWT, without more, is sufficient to provide reasonable grounds to a police officer to believe that a person with such an address will fail to appear in court.
There is little caselaw interpreting s. 498(1.1) of the Code. In a similar case, Justice Wilson in R. v. Jutras, [2007] O.J. No. 2396 (Ont. S.C.J) considered what constitutes belief on reasonable grounds to detain for the purposes of s. 498(1.1) and what constitutes arbitrary detention in breach of the Charter, by reviewing decisions that defined what constitutes reasonable grounds to detain in other contexts including investigative detention and arrest. Justice Wilson concluded in that case that to detain Mr. Jutras, an Ontario resident, as a flight risk because he was attending university in the United States, without more, was clearly unreasonable.
The entirety of the circumstances known to the police at the time must be assessed to determine the reasonableness of their belief. In R v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, Iacobucci J. held that for a detention to be valid, "the detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances." He stated that individual liberty is fundamental, and detention based upon a hunch is not enough:
...Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become de facto arrest (at paragraph 35).
There is a subjective and objective component to assessing the reasonableness of a police officer's belief: see R. v. Golub (1997), 1997 6316 (ON CA), 117 CCC (3d) 193 (Ont.C.A.) and R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (Ont. C.A.).
The Supreme Court of Canada held in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, that the objective component requires that "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed" (at paragraph 16).
Taking into account all of the circumstances known to the police at the time, and assessing the reasonableness of the grounds on both a subjective and objective basis, I find that the fact that Mr. Manuel resided in the NWT, without more, was not a reasonable ground for detention pursuant to section 498(1.1). The following factors were known to the police at the time:
a) ss. 489(1)(d) envisions the release of non-residents;
b) the fact that Mr. Manuel had familial ties to Ontario and specifically to London;
c) the fact that Mr. Manuel was employed as a teacher;
d) the fact that Mr. Manuel did not have a criminal record;
e) the fact that Mr. Manuel was 59 years old;
f) the fact that Mr. Manuel was polite, cooperative and respectful.
g) the fact that Sgt. Hadley made no efforts to substantiate his theory or opinion that it would be difficult for the police to find Mr. Manuel in the NWT.
For these reasons I conclude that the police did not have reasonable grounds to believe Mr. Manuel would not return to court. Therefore Mr. Manuel’s detention for a show cause hearing was arbitrary and in breach of section 9 of the Charter.
Charter – Section 8 – Unreasonable Search
Issue: If Mr. Manuel was arbitrarily detained, the next issue is was the strip search at the jail a breach of section 8 of the Charter?
There is no evidence Mr. Manuel was strip searched at the police station. He was, however, strip searched upon admission to the jail after appearing in court by video. These strip searches are justified on the grounds that a detainee will be entering the company of other detainees. The Court of Appeal for Ontario has held that “it would be a rare case when a strip search would not be justified on safety and security grounds when an accused is going to be entering the prison population” (Clarke, Heroux and Pilipa v. The Queen (2003), 2003 64244 (ON SC), 184 C.C.C. (3d) 39 (Ont.C.A.) at paragraph 89). In Clarke, supra, the Court stated that where an arbitrary detention causes “the need to strip search that accused, then the detention is unjustified, then the detention is unjustified, is arbitrary and an infringement of the very rights prescribed by the state in ss. 8 and 9 of the Charter” (paragraph 190).
I am mindful that it was not the police that conducted the strip search and that the authorities at the jail would not have known that Mr. Manuel’s detention was arbitrary, but the unjustifiable detention perpetrated by the police in this case “caused” the need for the resulting strip search at the jail. In other words, but for the arbitrary detention, Mr. Manuel would not have had to undergo “the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search” (R. v. Golden, 2001 SCC 83, [2001] S.C.J. No. 81). Therefore, I find that the strip search at the jail subsequent to Mr. Manuel being arbitrarily detained by the police violated section 8 of the Charter.
Charter – Section 10 (a) and (b)
Issue: Was Mr. Manuel entitled to be told the reason for his detention and told of his right to counsel when the police decided to detain him for a show cause hearing after his breath samples were given?
As noted by the Supreme Court of Canada in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, normally, s. 10(b) affords the detainee a single consultation with a lawyer. However, the authorities recognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances...generally involve a material change in the detainee’s situation after the initial consultation (paragraph 43).
In Jutras, supra, Wilson J reviewed the decision in R. v. Werner, [1999] O.J. No 2207 (Ont.S.C.J.) (which adopted and modified the principles in R. v. Black [1998] 2 S.C.R. 138) and concluded in that case that Mr. Jutras was entitled to be cautioned of his right to counsel and given an opportunity to consult counsel when the police decided to detain him for a show cause hearing. At paragraphs 64 and 65 Wilson J states:
The case law generally defines “jeopardy” as the risk of conviction. Thus an accused must be rewarned of [his] right to counsel at least when the police contemplate laying additional or more serious charges. The case law does not indicate that this definition is exhaustive, or that this is the only circumstance in which an accused must be rewarned of the right to counsel.
There is precedent for requiring the police to re-warn an accused of the right to counsel not only when the risk of conviction changes, but when the reason for detention changes, including detention for a show cause hearing as occurred in this case.
As in Jutras, Mr. Manuel was told of the reason for his arrest (impaired driving) and his initial detention (to provide breath samples) but there is no evidence that he was ever told the reason for his continued detention, namely, for a show cause hearing, or that he was he given his rights to counsel or an opportunity to consult with counsel thereafter. Therefore, I find that Mr. Manuel’s s. 10(a) and 10(b) rights were violated. As the court noted in Jutras, the breach of this right is not a trivial one.
Stay of Proceedings
Issue: Having found that Mr. Manuel’s Charter rights were violated, is this an appropriate case for a stay of proceedings?
As noted by the Ontario Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, the Supreme Court of Canada has made it clear that there are two categories of cases that may attract a stay of proceedings (paragraph 57). The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.
In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:
a) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and
b) no other remedy is reasonably capable of removing that prejudice
Canada (Minister of Citizenship & Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391 (paragraph 52).
The Court in Tobiass proposed a third criteria for cases that fall within either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay. In those cases the court may consider the balancing of the interests in granting a stay against society's interest in having a trial on the merits.
In Zarinchang, the Ontario Court of Appeal stated that :
where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.
When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of proceedings against an accused in the residual category of cases is the price the system pays to protect its integrity.
However, the “residual category” is not an open-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on its merits? In answering this question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victims and the broader interest of the community in having the particular charges disposed of on the merits
(paragraphs 58, 59 and 60).
In my view, this case falls within the residual category noted above and therefore I must engage in the balancing required by the third criterion. I must balance the interests in granting a stay against society’s interest in having a trial on the merits. I am mindful that a stay of proceedings is an exceptional remedy only appropriate in the clearest of cases: R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.). I am also mindful that trial courts in Ontario and the citizens of Ontario take seriously the offence of drinking and driving, and for this reason and the strength of the crown’s case here there is good reason to have a trial on the merits. However,
in my view the cumulative effect of the four Charter breaches in this case calls for a stay of proceedings and outweighs society’s interest in having the case heard on its merits. Mr. Manuel was arbitrarily detained and denied his right to counsel with the result that he was held in custody for three days , he was strip searched at the jail and the crown ultimately consented to his release on cash bail (see Transcripts in the Application Record filed). There is a need to insure that Mr. Manuel’s experience is not repeated for those who find themselves in a similar situation to him.
The Crown argued that there is another remedy available to me, namely, reducing the sentence, but given that there is a minimum sentence in this case my hands are tied such that I am unable to adjust the sentence to reflect the number and seriousness of the Charter breaches in this case. Therefore, I find that this is one of the clearest cases warranting a stay of proceedings and I grant a stay of proceedings pursuant to section 24(1) of the Charter.