Court File and Parties
Court File No.: Brampton 2013/1782 Date: 2014-03-27 Ontario Court of Justice
Between: Her Majesty the Queen — and — Mukesh Nayyar
Before: Justice George S. Gage
Heard: March 21, 2014
Reasons for Charter Ruling and Judgment released: March 27, 2014
Counsel:
- Sarah Stackhouse for the Crown
- Avtar Bhangal for the accused
GAGE J.:
Introduction
1Mr. Nayyar is charged with impaired driving and operate motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood. The factual matrix is not complicated. It is conceded by Mr. Nayyar that his blood alcohol concentration exceeded the statutory maximum. He submits however that he was unlawfully detained and that the evidence supporting the charges was obtained in a manner that infringed his rights under the Canadian Charter of Rights and Freedoms. He applies to have that evidence excluded pursuant to section 24(2).
2If the Charter application fails it is conceded that a finding of guilt on the "Over 80" charge will follow.
The Facts
3On February 3, 2013 at 12:43 am Peel Regional Police Constable Hardeep Mann was on general patrol in the north end of the City of Brampton in a fully marked police cruiser. At that time he was driving through a plaza parking lot when he noticed two males walking away from the front door of the Wendy's fast food restaurant located in the plaza. He noted that the two males seemed to be paying close attention to the cruiser as it passed in front of them.
4Constable Mann kept the males in sight and noted that they had entered a Mazda motor vehicle. Mann decided that he was interested in what the males might be doing so he made a U-turn and drove back toward the Wendy's. As he did so Constable Mann noted that the Mazda proceeded to the drive through lane of the restaurant.
5In light of the fact that he had first observed the males to be walking away from the front door of the same restaurant he found this to be a bit odd although he conceded in his evidence on cross examination that he had not observed the males to be in possession of bags and that at that hour it might have been the case that food purchases were restricted to the drive through outlet.
6The Constable waited in his cruiser near the exit section of the drive through lane. When the Mazda came out of the exit lane it went to a parking spot and stopped. Due to his impression that the behavior of the two males was suspicious he decided he would have a conversation with them to see what they were up to. He admits that at this stage he had nothing more than a "sense" that something was amiss that did not yet rise to level of suspicion or even "hunch". He had not, to that point, observed any behavior that demonstrated impairment. He got out of his cruiser and went over to the side of the Mazda. The window was up. He knocked on the window and motioned the driver to open the window.
7The driver opened the window. The driver was Mr. Nayyar. Constable Mann had a brief conversation with Nayyar in English. Constable Mann immediately noted the odour of an alcoholic beverage. He also noted that Nayyar's face was flushed and his eyes were bloodshot, red rimmed and watery. Mann decided at that point that he had reasonable and probable grounds to arrest Nayyar for impaired driving. Mann directed Nayyar to exit the vehicle. When he exited he noted that Nayyar was unsteady on his feet.
8After Nayyar had exited the vehicle Mann advised him that he was under arrest. He was searched and cuffed and placed in the back of the cruiser where he was given his rights to counsel and caution and a demand was made for samples of his breath. Thereafter Mann transported Nayyar to 21 Division where Nayyar provided two samples of his breath into an Intoxilyzer instrument operated by Constable Genoe. The readings were 160 and 170.
9In the course of cross examination Constable Mann conceded that at the point that he started to wait for the vehicle to exit the drive through lane he had decided that he was going to speak to the occupants and he would not have simply allowed Nayyar to drive away. He agreed with the suggestion of defence counsel that he considered Nayyar to be detained as of the point that he knocked on the window.
10Mr. Nayyar did not give evidence.
Positions of the Accused and Crown
Crown
11The question of whether the accused was detained within the meaning of Charter jurisprudence is a matter for the court to decide. The evidence of the officer on that point is not determinative. Not every interaction between the police and members of the public will result in a finding of detention. The decision by Constable Mann to find out what the two males were doing is not in itself objectionable. The officer did not place his cruiser in a position that blocked the accused. The knocking on the window was more in the nature of a request than a direction. Nayyar was not detained until after the officer had formed his reasonable and probable grounds to arrest. The detention did not crystallize until the point when the officer directed Nayyar to exit the vehicle. At that point in time Officer Mann had grounds to detain.
Defence
12Nayyar was detained at the moment that Constable Mann arrived at the side of his vehicle and motioned Nayyar to roll down the window. At that point Mann had no grounds for either arrest or investigative detention. The detention was therefore unlawful.
The Law
13The guiding authorities in relation to this question are the decisions of the Supreme Court of Canada in R v. Grant [2009] SCC 32 and R v. Suberu [2009] SCC 33.
14The discussion of the question of detention in this case is usefully commenced by reference to the overarching principles which inform the rights triggered by detention.
15The Charter recognizes that:
Detention represents a limit on the broad right to liberty enjoyed by everyone in Canada at common law and by virtue of s. 7 of the Charter, which guarantees that liberty will only be curtailed in accordance with the principles of fundamental justice. Section 9 of the Charter establishes that "everyone has the right not to be arbitrarily detained or imprisoned". Section 10 accords certain rights to people who are arrested or detained, including the right to retain and instruct counsel.
16The Grant analysis of the question of detention is described as purposive and "claimant centered". A part of the focus of the determination is the vulnerability of the position of the person subject to state direction or control and the effect that may have on the right against self-incrimination.
"Detention" also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. (my emphasis) More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.
17The burden of proving detention is upon the applicant to the standard of a balance of probabilities.
18A deprivation of liberty leading to a conclusion of detention may arise by way of an unambiguous assertion or exercise of significant physical restraint. A detention may also arise in a context in which a person "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist."
19In determining the answer to the question of whether there was detention in the psychological context the Court is directed to objectively and realistically examine and appraise all of the circumstances relevant to the interaction between the police and the individual asserting that she was detained. This will, according to Grant, inter alia, include:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
20As the Supreme Court of Canada observed in Suberu, not every interaction with the police will amount to a detention for the purposes of the Charter even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. The conclusion of the Court in Mann that there was an "investigative detention" does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes.
21Other guidelines and principles that are found in the Court's analysis in Suberu may be summarized as follows:
While any person stopped by the police will be detained in the sense of delayed or kept waiting – detention triggering constitutional protections will not be engaged by delays that involve no significant physical or psychological restraint
Even where an encounter clearly results in a detention, for example when a person is ultimately arrested and taken in police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction
The moment at which an encounter between the police and an individual effectively crystallizes in a detention will depend on the circumstances and it is for the trial judge, applying proper principles to the particular facts to determine if the line has been crossed
The onus is on the applicant to show that in the circumstances of the encounter he or she was effectively deprived of his liberty of choice. The test is an objective one and the failure of the applicant to testify as to his perceptions of the encounter is not fatal to the application, however, the applicant's contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence
Analysis
22Notwithstanding the excellent submissions made on Mr. Nayyar's behalf by Mr. Bhangal I have concluded that an objective and purposive analysis of the circumstances of the encounter between Constable Mann and Mr. Nayyar, conducted in accord with the principles enunciated by the Supreme Court of Canada in Grant and Suberu, results in a finding that a detention triggering Charter protections did not crystallize until the moment when Constable Mann directed Nayyar to exit his vehicle.
23While I appreciate the fact that Constable Mann testified that once his curiosity was piqued while driving by the Wendy's he had determined that he was going to speak to Mr. Nayyar and his companion, it appears to me that in the context of the Grant/Suberu analysis what he actually did is more important to the determination of detention than what he may have thought. The central question is whether there was significant physical restraint interfering with liberty, and if not, whether the objective circumstances support a finding of psychological compulsion.
24The salient circumstances of this encounter that inform the analysis and conclusion are as follows:
Constable Mann was conducting a routine patrol in a commercial parking lot in the early morning hours – at the point that he drove by the restaurant he was not involved in focused investigation of Mr. Nayyar or anyone else;
The officer's interest in Nayyar and his companion was initially inspired by his perception that Nayyar and his companion seemed unduly interested in his cruiser – there is no indication that it was motivated by an ulterior or objectionable motive;
The officer did not approach the Nayyar vehicle until after Nayyar had independently decided to park his vehicle – in other words Constable Mann took no steps to direct Nayyar to stop;
The officer did not position his cruiser in a way that blocked Nayyar's vehicle either to the front or the rear;
There was no physical restraint;
The officer's only direction to Nayyar was a knock on the window and a gesture requesting that the window be opened – a gesture that in the overall scale of things ranks as far less coercive than the verbal instruction given by the police officer in Suberu, "wait, I need to talk to you before you go anywhere"
The gesture was not abusive nor was it accompanied by a show of force or display of weaponry;
The entire encounter up to the point that the window was opened was exceedingly brief.
25I am not able to identify any basis for a conclusion that it is inherently objectionable that a police officer on general patrol seek an opportunity to speak to a citizen parked in a commercial plaza parking lot.
26While it might be reasonably inferred that having regard to his particular condition at the time Mr. Nayyar might have preferred to engage in conversation with a police officer on some other occasion in different circumstances I am not able to conclude on the evidence before me that on the occasion in question he would have reasonably felt psychologically compelled to roll down his window and speak to the officer.
27The difficulty of course, from Nayyar's perspective, is that once the window was rolled down the officer was immediately able to make other observations – odour of alcohol, red rimmed and watery eyes, flushed complexion – which were in no way secured by coercion or direction and that cumulatively justified the detention that ensued when Constable Mann directed Nayyar to exit the vehicle.
28The direction to exit the car resulted in a further observation of unsteadiness and words of arrest followed shortly thereafter.
29In the result I am not persuaded that Nayyar was unlawfully detained. The Charter application is therefore dismissed. In the event that I am wrong about the finding of detention I will say for the sake of completeness that I would have found it exceedingly difficult to justify exclusion of the relevant evidence under section 24(2).
30It follows that the Certificate of Analysis of the qualified breath technician is not excluded and forms the basis, together with the evidence of Constable Mann for a finding of guilt on the Over 80 charge. In accord with the principle enunciated in Kienapple the impaired driving prosecution is stayed.
Released: March 27, 2014
Signed: Justice George S. Gage