R. v. Thomson, 2014 ONCJ 472

Court File and Parties

Ontario Court of Justice

Date: 2014-08-25

Court File No.: Sudbury 130899

Between:

Her Majesty the Queen

— and —

Leighton Thomson

Before: Justice Randall W. Lalande

Heard on: October 31, 2013, February 13, March 31 and May 26, 2014

Reasons for Judgment released on: August 25, 2014

Counsel:

• Martin Tooke, for the Crown
• I. Isenstein / Glenn Sandberg, for the accused Leighton Thomson

LALANDE J.:

1: INTRODUCTION

1On October 31, 2013, Mr. Leighton Thomson entered a plea of not guilty to each of the following three (3) offences:

1. Impaired care and control contrary to section 253(1)(a) of the Criminal Code;

2. Operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof exceeded 80 milligrams of alcohol in 100 millilitres of his blood (referred to as "over 80") contrary to section 253(1)(b) of the Criminal Code; and

3. Failing to remain or immediately return to the scene of an accident contrary to section 200(1)(a) of the Highway Traffic Act ("HTA").

All offences are said to have occurred on the 17th day of March 2013 at the City of Greater Sudbury.

2In the early hours of March 17, 2013, two civilian witnesses made observations of a vehicle being driven by Mr. Thomson. A 9-1-1 call was made to police. An investigation unfolded and Mr. Thomson was approached by police at 12:24 a.m. While Mr. Thomson was being investigated for his driving related conduct a baggy of marijuana was found inside his vehicle. He was immediately arrested for possession of a controlled substance.

3Mr. Thomson complied with a roadside screening test which resulted in a "fail". He complied with a breath demand under section 254(3) of the Criminal Code which resulted in readings of "over 80". In terms of driving charges, he was arrested for impaired driving although formally later charged with "impaired care and control" and "over 80".

4Mr. Thomson brought an application referencing sections 7, 8, 9, 10(b), 11(e), 24(1) and (2) of the Canadian Charter of Rights and Freedoms (the "Charter"). He alleged breach of his Charter rights and has asked the court for a stay of proceedings pursuant to section 24(1) or in the alternative for an order excluding evidence pursuant to section 24(2) of the Charter.

5Charter breaches advanced by Mr. Thomson are more specifically related to the following arguments:

1. That at the scene, Constable Andrew Hinds did not have reasonable and probable grounds to arrest him for impaired driving and make a breathalyser demand under section 254(3) of the Criminal Code, that the lack of reasonable and probable grounds rendered the arrest arbitrary, and that the seizure of breath samples was warrantless and therefore prima facie unreasonable;

2. That further to his arrest for possession of a controlled substance, Mr. Thomson's right to counsel was delayed or he was not reasonably permitted to exercise his right to counsel in accordance with section 10(b) of the Charter; and

3. That Mr. Thomson was arbitrarily detained by police and that the duration of time he was detained was unnecessary and that certain events unfolded during his unlawful/lengthy detention which exacerbated the seriousness thereof.

6The Crown maintains that Mr. Thomson's rights, including his rights under sections 7, 8, 9, 10(b) and 11(e), were at all times respected. In the alternative, according to the Crown, if there has been a Charter breach, this is not a case for the exclusion of evidence under section 24(2) of the Charter nor is it an appropriate case for a remedy under section 24(1).

7On consent and to ensure expediency, the case proceeded by way of a blended voir dire at trial. Six (6) witnesses (including Constable Hinds as the investigating officer and Constable Roberge as the breathalyser technician) were called by the Crown. Mr. Thomson testified on his own behalf and his father, Douglas Thomson was called as his only witness. The last day for trial was March 31, 2014. The case was put over to May 26, 2014 and subsequently to July 23, 2014. On July 23, 2014, the matter was put over to today for the release of Reasons for Judgment.

2: OVERVIEW OF THE EVIDENCE

2:1 Crown's Evidence

8For purposes of these reasons I shall provide a brief synopsis of the evidence and touch upon portions thereof testified to by Crown witnesses and witnesses for the defence. Not all of their evidence shall be referred to but all their evidence has fully been considered for purposes of these reasons.

Richard Church

9At approximately 12:00 a.m. on March 17, 2013, Richard Church who was operating his motor vehicle near the intersection of Regent and Paris Street made certain observations of a vehicle being driven by Leighton Thomson. Mr. Church's daughter, Kaila was with him. Observations were made by them at the same time. He testified that they placed a 9-1-1 call to police.

10The observations made by Mr. Church and his daughter were made from the vantage point of their vehicle which followed Mr. Thomson's vehicle for a distance of approximately one quarter mile in a northerly direction along Paris Street commencing at the intersection of Regent Street and Paris Street and ending at the driveway entrance to the Brady Square shopping mall.

11Mr. Church's attention was attracted to Mr. Thomson's vehicle as it turned left from Regent to Paris Street. He described the turn as "too close". He said that Mr. Thomson's vehicle then took up two lanes as it sped ahead. As Mr. Thomson's vehicle was being followed, Mr. Church noticed it to have crossed into the opposing lane a couple of times. It ended up hitting a snow bank near Walford Road. He observed what he described as "parts" flying from the vehicle. A short distance further it almost hit another vehicle on the roadway. Mr. Church (and his daughter) remained on the 9-1-1 call to police while following Mr. Thomson.

12Although still operable for a further short distance, Mr. Thomson's vehicle stalled on the roadway. When police first spotted Mr. Thomson at approximately 12:24 a.m., he was in the process of physically pushing the vehicle he had been operating while steering it from the open driver's door. He managed to push the vehicle into the driveway entrance of the Brady Square shopping plaza located at the intersection of Paris Street and Brady Street.

13During the initial stages of the investigation police observed money located in the centre console of the vehicle driven by Mr. Thomson. As police were in the process of retrieving the money to secure it on Mr. Thomson's behalf at 12:29 a.m., a small baggy of marijuana was discovered inside the vehicle. Mr. Thomson was arrested for possession of a controlled substance under the Controlled Drugs and Substances Act ("CDSA"). He was read his right to counsel and given the usual caution.

14As a result of certain observations made by police and in particular by Constable Andrew Hinds, a demand was made at 12:30 a.m. under section 254(2) of the Criminal Code. On his third attempt, Mr. Thomson provided a breath sample suitable for testing by an approved screening device ("ASD"). He then complied with a breathalyser demand under section 254(3) of the Criminal Code resulting in two readings exceeding "over 80".

Acting Sergeant Randy Hosken

15He has been an active officer since 2001. He received a call at 12:24 a.m. Upon arriving at the scene, he observed Mr. Thomson pushing his vehicle westbound in the northbound lane of Paris Street. As he got closer to Mr. Thomson he observed that his eyes were red and watery and that he smelled of alcohol. He said Mr. Thomson spoke quickly and appeared nervous. He detected an odd slur when Mr. Thomson spoke.

16He provided a description of the motor vehicle driven by Mr. Thomson. He said that there was a front fog light that appeared damaged and was hanging from the vehicle. The vehicle was leaking fluid for a distance of about 50 meters (along Paris Street). The vehicle was not running. He observed a piece of bumper on the roadway.

17In cross-examination Officer Hosken confirmed that he had never spoken to Mr. Thomson before and that he was co-operative. He described the odour of alcohol as "strong". He agreed that red or watery eyes could be consistent with other issues such as fatigue. He confirmed that Mr. Thomson produced his required documents as requested. There was no lack of dexterity in producing the documentation. Mr. Thomson's vehicle had been pushed into the driveway such that it did not appear to impede with other traffic.

Constable Enzo Rizzi

18He has been an active officer since 1999. He was on traffic duty. He received a call from radio dispatch at approximately 12:20 a.m. This resulted in him attending at the scene.

19Officer Rizzi described damage to the vehicle driven by Mr. Thomson. His description of the vehicle was not dissimilar to that provided by Officer Hosken. Officer Rizzi prepared a traffic report. He took a statement from Mr. Richard Church and his daughter Kaila Maloney.

20Officer Rizzi described Mr. Thomson as being argumentative with Constable Hinds. He also testified that he spoke to Mr. Thomson's parents. Based on that discussion, he was left with the thought that Mr. Thomson may have been dealing with some emotional, anger or mental issues. This was challenged in cross-examination and by evidence given by Mr. Thomson himself and his father.

21Officer Rizzi gave examples of Mr. Thomson's non-compliance during the investigation. He agreed that Mr. Thomson did not present as being violent or threatening.

Constable Andrew Hinds

22He has been an active police officer since 2009. He arrived on the scene at approximately 12:25 a.m. He acted as the investigating officer. He observed Mr. Thomson pushing his motor vehicle as described by Officer Hosken. He noted the vehicle was damaged. His description of the damage was similar to the description provided by Officer Hosken and Officer Rizzi.

23He detected a strong odour emanating from Mr. Thomson's breath. He said Mr. Thomson displayed red, blood shot, glassy eyes. He obtained general information about Mr. Thomson's vehicle being damaged as a result of having struck a snow bank. He confirmed the basis upon which he said he had reasonable and probable grounds to suspect that Mr. Thomson had alcohol in his body.

24He confirmed that a small baggy of marijuana was located in Mr. Thomson's vehicle and that Mr. Thomson was arrested at 12:29 a.m. for possession of a controlled substance. Mr. Thomson was provided his right to counsel and cautioned before the roadside screening demand was made. Mr. Thomson responded that he did want to contact a lawyer and was told that the police station was just around the corner, that a phone and list of lawyers would be made available and that he would be given an opportunity to speak with a lawyer.

25A demand was made under section 254(2) at 12:30 a.m. Mr. Thomson told Officer Hinds that he had not consumed alcohol. On his third attempt, Mr. Thomson provided a suitable sample. This produced an "F" or "fail" reading. Officer Hinds described Mr. Thomson as being belligerent, combative and uncooperative with simple directions.

26Officer Hinds testified that Mr. Thomson spoke with counsel between 12:53 a.m. and 1:09 a.m. He was then turned over to Constable Roberge for breathalyser testing. Mr. Thomson was returned to the custody of Officer Hinds at 1:58 a.m. Officer Hinds described his conduct as very disruptive. In cross-examination, Officer Hinds confirmed that the police station was located approximately two minutes away from the scene. He confirmed that although Mr. Thomson was confrontational and disruptive, he was not violent and did not make threats.

27Officer Hinds described reasons upon which he formed reasonable and probable grounds to make an arrest for "impaired". He also spoke to Mr. Thomson's parents and was aware they were attending at the police station. The parents attended at the police station and spoke to him (Officer Hinds). It was he who had to advise them that Staff Sergeant Rumford had made the decision to not release their son from custody.

28Officer Hinds confirmed that after completion of the roadside screening test, he arrested Mr. Thomson for "impaired driving" because he "added it all up". He said he felt Mr. Thomson was impaired but wanted to ensure that it was because of alcohol.

Constable Chris Mann

29He has been a police officer for 4 years. He was dispatched at 12:24 a.m. to the scene for the same reasons as other officers who attended. He also observed damage to the vehicle driven by Mr. Thomson.

30It was Officer Mann who discovered $100.00 (in $20.00 bills) in the console of the vehicle driven by Mr. Thomson. He took the money in order to secure it. He was in the process of searching the vehicle for Mr. Thomson's documents when he discovered a small baggy of marijuana. He estimated it contained 8 to 10 grams. He immediately advised Officer Hinds.

31Officer Mann drove Mr. Thomson to headquarters at 12:39 a.m. He arrived at the police station at 12:44 a.m. He confirmed that a call was placed to lawyer Susan Hare at 12:53 a.m. There was no answer. Another call was unsuccessfully placed to lawyer Michael Haraschuk. Mr. Thomson then called lawyer Glenn Sandberg. He spoke to Mr. Sandberg between 1:04 and 1:12 a.m.

Constable Jacques Roberge

32He has been a police officer with the Greater Sudbury Police Service since 2008. He is a qualified breathalyser technician. Mr. Thomson was turned over to him by Officer Hinds at 1:15 a.m. His dealings with Mr. Thomson were recorded on videotape.

33He described Mr. Thomson as excited, belligerent and using profanity. He indicated that as time passed, Mr. Thomson calmed down and became co-operative.

34Officer Roberge used an Intoxilizer 8000C for breath testing. The instrument was calibrated and in proper working order. The first sample of breath was conducted at 1:34 hours resulting in a reading of 150 milligrams of alcohol in 100 millilitres of blood. A second sample was provided at 1:56 hours which resulted in a reading of 153. At 1:58 hours, Mr. Thomson was returned to Officer Hinds' custody.

35Officer Roberge did indicate that at one point during his lengthy interview with Mr. Thomson, he heard him utter the word "suicide" and make reference to killing himself by placing a hose in an exhaust pipe. He specifically indicated that Mr. Thomson had alluded to harming himself. Staff Sergeant Rumford and Constable Hinds were spoken to by Officer Roberge about these utterances.

2:2 Defence Evidence

Leighton Thomson

36He was 24 years of age at the time of his arrest. On Friday, March 15, 2013 in the late afternoon, he had just returned from Newfoundland where he had been completing a work project with his father. They were both employed by Horesburg and Scott which is a millwright company. They had worked 12 hours per day for seven straight days.

37The next day, Saturday, March 16, 2013 Mr. Thomson went car shopping during the afternoon. At between 6:30 and 7:00 p.m., he met his brother and his brother's friend at a local establishment called "Fionn MacCool's" located on Regent Street (approximately 10 kilometers from where Mr. Thomson was arrested). He indicated that he had not seen his brother for three weeks and that his brother and his brother's friends had been at the establishment since noon.

38Mr. Thomson testified that he consumed two 18 ounce glasses of Budweiser beer. He said that his brother became "pretty intoxicated". Mr. Thomson called his brother's girlfriend who picked his brother up from Fionn MacCool's at approximately 9:00 p.m.

39Mr. Thomson said he left Fionn MacCool's between 10:30 and 11:00 p.m. He left with his brother's friends. They all took a taxi and went to the downtown core area of the city. Once there he said he decided he did not want to stay. He took a taxi back to Fionn MacCool's in order to fetch his own vehicle. His vehicle is a dark green 2004 Grand Prix purchased in 2008. He explained that it was not in the best of shape. On an earlier occasion, the vehicle had been damaged. This is as a result of Mr. Thomson hitting black ice and colliding with a snow bank.

40Mr. Thomson provided an explanation for some of his aberrant driving (as observed by Mr. Church and his daughter). He indicated as follows:

• He turned left from Regent Street on to Paris Street (as observed by Mr. Church and his daughter);
• He was reaching for his pack of smokes. The smokes fell and slid to the passenger side of the vehicle;
• He attributes the ongoing effort of reaching for his smokes (for a distance of approximately one quarter mile) as that which caused his vehicle to swerve, have difficulty staying in its own lane of travel and ultimately colliding with the snow bank;
• At one point he stopped reaching for his smokes because "it wasn't worth it". He admitted that his vehicle was swerving but only inside its own lane.

41After colliding with the snow bank, Mr. Thomson said that he continued driving until after the Paris Street bridge at which time the vehicle "died" and coasted to near the entrance of Brady Square. At that point he pushed the vehicle as described by the police witnesses. He wanted to get it off the road. His plan was to try to start the vehicle up and then continue driving home.

42Mr. Thomson agrees that he had an odour of alcohol on his breath. He said he was sleep-deprived and that could have accounted for his red or glossy eyes.

43Mr. Thomson was aware that police found a baggy of marijuana in his vehicle. He denied smoking any of the marijuana. He confirmed he was advised of his right to call counsel after being charged with possession of a controlled substance. He told Constable Hinds that he wanted to speak with a lawyer. He said that he was in possession of an operating cell phone which could have been used but he was not allowed to use it.

44After Officer Hinds made the section 254(2) roadside demand Mr. Thomson said that he told him (Officer Hinds) that he would not blow until he spoke to his lawyer. He said that he was not allowed to call.

45Other portions of Mr. Thomson's evidence shall be referred to later in these reasons.

Douglas Thomson

46He is Leighton Thomson's father. He confirmed receiving a call at approximately 2:00 a.m. March 17, 2013 from Officer Hinds who told him that his son was being charged.

47Approximately 15 to 20 minutes later, Douglas Thomson spoke to Officer Hinds again. He said Officer Hinds told him that he (Officer Hinds) had spoken to Staff Sergeant Rumford. Officer Hinds said that Leighton Thomson could be released to him (Douglas Thomson).

48Douglas Thomson resided in the Val Caron area. He said he told Officer Hinds he was on his way and would be there in 20 minutes.

49Upon attending at the police station, Douglas Thomson was advised that matters had changed and that the issue of Leighton Thomson's release was under review. A short while later, Douglas Thomson (and his wife) were told that their son would not be released to their custody.

50Douglas Thomson confirmed that he would not have had any concerns about taking his son home. He did indicate that his son at times loses his temper and becomes agitated or irritated. He said that he watched the video and did not feel that alcohol had an effect on his son.

51On the same day at around noon, Mr. Douglas Thomson attended at the Sudbury District Jail. He was not allowed to see his son because he had not set up an appointment and given 24 hours' notice.

52He confirmed that his son called at 5:00 p.m. that afternoon. His son advised that he would be attending bail court Monday morning and that he had already spoken to a lawyer.

53Douglas Thomson said that he had not been made aware that there was WASH court dealing with persons detained over the weekend. Had he known about the weekend court, he would have attended. He was not made aware of any such option.

54Douglas Thomson confirmed that he had spoken to Officer Rizzi and that the issue of medication had been discussed. He said he thought that police were looking for a history and that is why the issue had been discussed. He confirmed that it had been about two years since his son had suffered from headaches requiring him to take medication. He said that his son tried medication (two years prior) but he decided to stop because of the side effects.

55Douglas Thomson said that he did not believe that his son was addicted to alcohol. He portrayed his son as a social drinker who at times goes out and drinks alcohol with his friends.

3: ANALYSIS

56Mr. Church presented himself as a reliable witness. He had a good recollection of what he had observed. There was no issue with his identification of the vehicle driven by Mr. Thomson. During cross-examination, he did agree that as he followed Mr. Thomson's vehicle there were portions of time when he (Mr. Thomson) would have had his vehicle under control.

57Mr. Church spoke as a responsible citizen, only interested in doing what was right. He did his best to articulate what he saw to police. He followed Mr. Thomson with an unimpeded view. As he testified, he made no effort to embellish his evidence and he appropriately responded to questions put to him in cross-examination.

58There are many aspects about Mr. Thomson's evidence which impact negatively against its reliability. By way of example:

• In his evidence given on February 13, 2014, he indicated that he never "blew" before. At the continuation of his trial on March 31, 2014, he admitted that he had "blown" once before in 2011. When questioned on this point he stated that he "forgot";
• He confirmed telling Constable Roberge that he was the "designated driver". He admitted in cross-examination that this was not true and that perhaps he said this to appear less culpable;
• He told Constable Roberge that he had only consumed one beer. He admitted that this was untrue. Upon being questioned about why he said the "untruth", he replied by indicating that he "was not sure";
• He initially told Constable Roberge that his vehicle did not collide with a snow bank. He admitted this not to be a truthful response. He was asked to explain why he had made the statement. In response he stated "I don't know";
• He initially told Officer Hinds that he had not consumed alcohol, which was not true;
• He stated that while at the Sudbury District Jail on Sunday March 17, 2013, he was intimidated to use the phone and that he had not spoken to his parents. He also stated that he did not know how to use the phone. This was directly contradicted by his father, whose evidence on this point I do accept, that he (Leighton Thomson) called his home and spoke to his father that same day at 5:00 p.m.;
• He did not in large terms disagree with Mr. Church's observations of his bad driving. At the same time, he denied almost colliding with another vehicle. It is obvious that Mr. Thomson on his own admission had taken his eyes off the road presumably while reaching for his smokes. He offered this as an explanation for weaving on the roadway and colliding with the snow bank. By taking his eyes off the road for the duration of time he said that he did, he said he could easily have come close to colliding with another vehicle as indicated by Mr. Church whose evidence the court does accept;

59The veracity of Mr. Thomson's explanation for his bad (if not dangerous) driving over the course of approximately one quarter mile is highly questionable. According to Mr. Church, Mr. Thomson's vehicle continued to swerve on the roadway even after its significant collision with the snow bank. It is very doubtful that Mr. Thomson would have chosen to continue searching for his smokes after his vehicle collided with the snow bank.

60In the court's view Mr. Thomson at times was being selective with his responses. As stated, the court accepts Mr. Church's observations. There is nothing suspect about Mr. Church's description of Mr. Thomson's bad driving.

61The overall impression left by Mr. Thomson is that he was at times in his testimony most prepared to play loose with the truth. He gave a number of answers of convenience geared to removing the focus from his driving and also to minimize the negative and unpleasant demeanour he exhibited during the course of the police investigation.

62There was some discussion between Mr. Thomson's parents and Officer Rizzi about Mr. Thomson's mental health. I accept the explanation that Mr. Thomson's parents were attempting to provide a broad history to the police because of the circumstances surrounding the arrest and to some extent Mr. Thomson's demeanour vis-à-vis the police. There was nothing specifically said to support any idea that Mr. Thomson presented a security risk to himself or anyone else.

3:1 Reasonable and Probable Grounds

63Defence counsel argued that Officer Hinds only had a reasonable suspicion and did not have reasonable and probable grounds to arrest Mr. Thomson for impaired driving. At best, submitted counsel, Officer Hinds only should have arrested Mr. Thomson for "over 80" and not for "impaired driving".

64Officer Hinds presented as a reliable witness. He was candid with his answers. He had excellent recollection of the facts. His credibility was not shaken in cross-examination. The tone and quality of his responses gave the impression of fairness.

65Defence counsel did not suggest that there existed a lack of proper grounds to make a roadside demand. It is obvious on these facts that there were ample grounds upon which Constable Hinds could formulate a reasonable suspicion that Mr. Thomson had operated a motor vehicle with alcohol in his body.

66As expressed in the well-known Supreme Court of Canada decision of R. v. Bernshaw, [1994] S.C.J. No. 87, the Criminal Code provides that where a police officer believes on reasonable and probable grounds that a person has committed an offence pursuant to section 253 of the Code, the police officer may demand a breathalyser. The existence of reasonable and probable grounds entails both an objective and subjective component. On these facts, Officer Hinds arrested Mr. Thomson after he complied with the roadside screening test, which resulted in an "F" or "fail" result at 12:32 a.m. At 12:33 a.m., Mr. Thomson was advised that he was being charged with impaired driving. He was given his right to counsel.

67As stated in the Bernshaw decision, the purpose behind the screening test is to assist police in furnishing the reasonable grounds necessary to make a breathalyser demand. A "fail" result may be considered along with any other indicia of impairment in order to provide the police officer with the necessary reasonable and probable grounds to demand a breathalyser. Section 254 of the Criminal Code does not specify that a "fail" result is deemed to provide reasonable and probable grounds. It is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that the person being investigated had committed an offence under section 253 of the Code.

68Earlier in his evidence and in response to a question posed by the Crown, Officer Hinds stated the following:

"Due to the fact that the driving evidence of being involved in a collision, the smell of the alcoholic beverage emanating from his breath, the red, glassy eyes are all indicia of impaired from alcohol and I had the suspicion that he had alcohol in his system and that was what was causing his impairment and therefore to confirm that it was alcohol I wanted him to give me a breath sample into an approved screening device"

69The following exchange took place between the Crown and Officer Hinds:

Q: And you charged him with impaired?

A: That is correct.

Q: Could you explain what your thinking was to charge him with impaired?

A: The information that I received over the radio in regards to the driving of the dark coloured Pontiac,….as a result of my conclusion that Mr. Thomson was operating the dark coloured Pontiac and he was (that was?) the motor vehicle that the broadcast was speaking about, the detection of the alcoholic beverage emanating from his breath, his red, blood shot eyes were all an indicia of impaired driving and I believe that as a result of the "fail" that he was over 80 milligrams of alcohol in 100 millilitres of blood and this is why I came to the conclusion that he was impaired by alcohol.

70It may be noted Officer Hinds testified that Mr. Thomson was confrontational, belligerent, disruptive, uncooperative and non-compliant. He did provide examples of Mr. Thomson's behaviour which led him to make these comments.

71In cross-examination, it was suggested to Officer Hinds he only had a "suspicion" and that that was why he made a screening demand. It was suggested to Officer Hinds that he did not think that Mr. Thomson was impaired by alcohol at that time. At one point defence counsel (Mr. Isenstein) posed the following questions:

Q: The fact that you gave him an ASD demand and arrested him for impaired driving, does that make sense to you?

A: Yes it does.

Q: How do you rationalize that?

A: I'd come to the conclusion that he was impaired. I could smell an alcoholic beverage emanating from his breath. I used an approved screening device as an investigative tool to confirm that he has a level of alcohol in his system. And given the fact he registered an "F" would indicate that he was over 80 milligrams of alcohol in 100 millilitres of blood and therefore indicating that he is impaired by alcohol.

Q: And your purpose in reading him the ASD demand and having him do the ASD was to determine whether he was over 80 milligrams, correct?

A: No, it was to determine if the impairment was as a result of alcohol.

72The gist of Officer Hinds' testimony was that he believed that Mr. Thomson was impaired but wanted to use the screening device to confirm that Mr. Thomson was impaired because of alcohol consumption. The difference between having reasonable grounds to suspect that a person has alcohol in his or her body or reasonable grounds to believe that a person is committing a section 253 offence was clear in Officer Hinds' mind. Officer Hinds clearly stated that he had a reasonable suspicion that Mr. Thomson had alcohol in his body but at the same time, he believed he was impaired. He stated unequivocally that he was using the screening device to confirm whether Mr. Thomson's impaired state was because of the consumption of alcohol.

73In defence counsel's submission, the information known to Constable Hinds at the time, considered in its totality, cannot reasonably be said to support more than a suspicion. Inherent in the argument is that a reasonable person placed in the position of the officer could not conclude that there were reasonable and probable grounds to believe that Mr. Thomson committed an offence under section 253 of the Code and therefore subject to arrest.

74The court reminds itself that to find the existence of "reasonable grounds" does not involve an onerous test. The subjective component involves an honest belief by the officer that the person accused was driving while his or her ability to do so was impaired by alcohol. The objective component then asks whether the officer's opinion is supported by objective facts. Moreover, judicial scrutiny must recognize the context within which police officers work. They must often arrive at decisions in impaired driving cases based on limited information gathered during the initial stages of the investigation. They do not have the benefit of hindsight.

75In assessing the issue of reasonable grounds, the following circumstances may be considered:

• There was ample evidence of bad driving;
• There was evidence of an accident involving the vehicle driven by Mr. Thomson. The vehicle was damaged;
• There was evidence of an odour of alcohol, red, blood shot, glassy eyes;
• There was evidence that Mr. Thomson was uncooperative;
• There was evidence that at times Mr. Thomson was belligerent, combative and non-compliant even with simple direction;
• There was evidence of Mr. Thomson's agitated, emotional state. At times he was seen to be crying;
• There was evidence of a screening (ASD) device failure.

76The court is mindful that in cross-examination police witnesses acknowledged that Mr. Thomson's symptoms could be attributed to other reasons. That, however, does not take away from the fact that taken as a whole, there does exist evidence indicative of impairment which Officer Hinds was able to take into account in formulating his reasonable and probable grounds.

77I am satisfied that Officer Hinds discerningly assessed the evidence as best he could. There were grounds upon which he could form reasonable and probable grounds for his belief. In my view, the position taken by the officer is supported by objective facts. Although Officer Hinds formed his opinion and thought that there were reasonable grounds prior to the ASD "fail" result, it was still open to him for investigative purposes to factor in the "fail" result.

78While it was open to Officer Hinds to arrest Mr. Thomson at the scene for "over 80", he decided to arrest Mr. Thomson for "impaired driving". He knew there was a distinction. He provided an adequate explanation and the facts were sufficient to support his belief.

79In all of the circumstances, Officer Hinds did have the necessary reasonable and probable grounds to arrest Mr. Thomson for the offence of impaired driving contrary to section 253(1)(a) of the Criminal Code. The arrest was not arbitrary and there did not flow therefrom a Charter breach.

3:2 Charter Right to Counsel 10(b)

80Officer Hinds arrived at the scene at 12:25 a.m. Within minutes after arriving he spoke with Mr. Thomson. He detected a strong odour of an alcoholic beverage emanating from Mr. Thomson's breath. He noted Mr. Thomson to have red, bloodshot, glassy eyes. In making his observations and speaking with Mr. Thomson he determined that he had a reasonable suspicion that Mr. Thomson had operated a motor vehicle with alcohol in his body.

81Between 12:26 and 12:29 a.m., Officer Hinds asked Mr. Thomson to accompany him to his police cruiser. At this point, Mr. Thomson was standing outside the driver's door of the vehicle he had been operating. Officer Hinds intended proceeding with the driving offence(s) investigation but before actually making a roadside demand, he was approached by Officer Mann who had discovered the baggy of marijuana inside Mr. Thomson's vehicle. Officer Hinds then had reasonable and probable grounds to believe that Mr. Thomson was in possession of a controlled substance contrary to the CDSA. He was arrested for this offence and at 12:29 a.m. provided his rights to counsel and caution. In response to being asked if he wished to speak to a lawyer, Mr. Thomson replied "Yes".

82After indicating that he wished to speak with counsel, Mr. Thomson was told by Officer Hinds that the police station was just around the corner and that he would be given the opportunity to speak with a lawyer. He was told he would be provided with a telephone and list of lawyers to choose from if he did not have his own lawyer.

83The following events unfolded within a short space of time:

• At 12:30 a.m., a roadside screening demand was made by Officer Hinds. In response Mr. Thomson stated "I won't blow until I call a lawyer". Constable Hinds informed him that he was obliged to provide a sample and that he would be given the opportunity to contact counsel upon arriving at the police station;
• At 12:32 a.m., on his third attempt, Mr. Thomson provided a suitable sample which registered a "fail" on the approved screening device;
• At 12:33 a.m., Mr. Thomson was charged with the offence of "impaired driving". He was again given his rights to counsel. In response, he indicated that he wanted to call a lawyer;
• At 12:33 a.m. a breathalyser demand was made by Constable Hinds;
• At 12:44 a.m., Mr. Thomson arrived at the police station in the company of Constable Mann;
• At 12:53 a.m., Mr. Thomson unsuccessfully placed a call to lawyer Susan Hare. He also unsuccessfully attempted to contact three other lawyers;
• At 1:04 a.m., Mr. Thomson spoke to lawyer Glenn Sandberg. The conversation ended at approximately 1:12 a.m.

84Officer Hinds confirmed that there was no telephone available by police at the scene. Mr. Thomson testified that he was in possession of a functioning cell phone but that he did not disclose this to police. Officer Hinds did not specifically ask Mr. Thomson whether or not he had a cell phone. This is not a case where police knew that a cell phone was available but refused permission to use it.

85It is apparent on these facts that because of the close proximity of the police station, and the absence of any reason to expect that the investigation of a driving offence(s) would take any much time, that no significant delay was envisaged by Officer Hinds. It is also noteworthy that the law has not yet evolved to the point where there exists an onus on police to actively explore the use of cell phones in every case at the scene. It is also clear that Mr. Thomson made no inquiry as to the use of a cell phone and in fact made no mention of having one in his possession.

86After Mr. Thomson was charged with possession of a controlled substance and indicated that he wished to speak with counsel, the investigation relating to that charge was not further pursued. There was, however, a demand made for a breath sample for roadside screening purposes. The sample was received and analyzed within approximately 4 minutes.

87Defence counsel referred to several paragraphs contained in the decision of R. v. Casselman decided by J. Paciocco on January 29, 2014. In that decision, the investigating officer arrested Mr. Casselman for "failing to remain", handcuffed him, read him his rights to counsel and then questioned him immediately. During the questioning exchange that followed, the officer was able to form grounds for a roadside screening demand. He administered the test and then arrested Mr. Casselman for "over 80".

88In the within case, Officer Hinds had already determined that he had grounds. He had asked Mr. Thomson to accompany him to the cruiser in order to further pursue the investigation. He became aware of the baggy of marijuana after having asked Mr. Thomson to accompany him but before actually making the roadside demand. This is quite different from the facts in the Casselman case where the grounds for the roadside demand were formulated as a result of ongoing discussions with the accused after he had been given his rights to counsel but presumably before he had had a reasonable chance to exercise his rights to counsel.

89Officer Hinds was not attempting to continue on with his investigation of the charge of possession of a controlled substance. It cannot be said on these facts that Mr. Thomson's Charter rights were suspended in order to facilitate a new found alcohol driving offence (stemming from ongoing questioning). The driving offence(s) investigation was already underway. The investigation was briefly interrupted by the discovery of the baggy of marijuana. Mr. Thomson was charged with the offence of possession of a controlled substance. After indicating that he wished to speak with counsel, he was not questioned any further on that charge. After complying with the roadside demand he was arrested. The driving investigation immediately continued and was completed without delay.

90On these facts there was a necessary brief limitation on the right to contact and instruct counsel after Mr. Thomson was charged with possession of a controlled substance. There was a brief delay in order to accommodate continuation of the roadside investigation. As indicated in the seminal decision of R. v. Thomsen, [1988] 40 C.C.C. (3rd) 411, there does exist a necessary limitation on the right to retain and instruct counsel at the roadside testing stage itself.

91Mr. Thomson was given his right to counsel twice, back to back (so to speak); firstly at 12:29 a.m. after being arrested for possession of a controlled substance and, secondly, at 12:33 a.m. after a "fail" registered on the roadside screening device.

92Mr. Thomson was told when first given his right to counsel that the police station was located nearby (just around the corner) and that once he arrived at the police station he would be given full opportunity to consult with counsel and provided with a list of lawyers.

93Officer Hinds did advise Mr. Thomson that he did not have the right to consult and instruct counsel prior to complying with the roadside screening demand. He understood and complied with the demand. Officer Hinds was correct with the information given to Mr. Thomson.

94As stated after being charged with impaired driving, Mr. Thomson was again given his rights to counsel. Police acknowledged that Mr. Thomson again indicated that he wished to consult with counsel. Mr. Thomson was transported to police headquarters where he fully exercised his right to consult and instruct counsel.

95In the circumstances of this case the right to consult and instruct counsel at best may have been very briefly delayed in order to accommodate continuation of the driving investigation. Officer Hinds did turn his mind to providing telephone access as soon as practicable. The decision by Officer Hinds to continue with the screening demand was reasonable and in the circumstances cannot be categorized as a Charter "faux pas". The brief delay involved must be measured against the importance of police continuing and completing the roadside investigation. The roadside investigation only took several extra minutes. Mr. Thomson's Charter rights stemming from having been charged with possession of a controlled substance may have been briefly delayed, but the delay was justified.

96In conclusion and on this issue, I do not find that Mr. Thomson's 10(b) Charter rights were violated.

3:3 Arbitrary Detention Section 9

Position of the Defence

97Counsel for the defence argued that Mr. Thomson's rights as protected by section 9 of the Charter were breached and that the appropriate remedy would be a stay of proceedings [section 24(1)] or in the alternative an exclusion of evidence [section 24(2)]. He argued that Mr. Thomson was arbitrarily detained contrary to section 9 of the Charter when police refused to release him after he had completed breathalyser testing and necessary documentation for police purposes and for his release had been prepared.

98Defence counsel further argued the existence of aggravating circumstances touching upon the issue of Mr. Thomson's detention. This would include Mr. Thomson having been strip searched at the Sudbury District Jail, police having failed to monitor his condition in an effort to ensure earlier release, his unnecessary and continued detention over a lengthy period of time and the failure by police or jail officials to facilitate further contact with counsel.

99Defence counsel submitted that this was one of the clearest cases for stay of proceedings because of the length of the unnecessary detention and the aggravating circumstances relating to it. Defence counsel submitted that Mr. Thomson's detention was not in compliance with statutory authority, not in the public interest, and hence was arbitrary and contrary to section 9 of the Charter.

Position of the Crown

100The Crown submitted that no breaches of Mr. Thomson's Charter rights arose as a result of his detention or during the course of his detention pending a bail hearing or his release. In the Crown's submission, if a breach did occur then there would be a lack of temporal or causal nexus between the breach and the obtention of evidence militating against an order excluding evidence pursuant to section 24(2) of the Charter. The Crown also submitted that a stay of proceedings pursuant to section 24(1) of the Charter would not be an appropriate remedy because this case is not one of the clearest cases calling for such a remedy.

Legislation

101Section 498(1) of the Code provides:

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, 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,

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) 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, but without deposit of money or other valuable security; or

(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 kilometres 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 direct

(1.1) 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,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(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.

102Subsection 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.

103Section 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.

104Section 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…..

Evidence Relevant to Detention

a) Douglas Thomson

105Douglas Thomson received a telephone call at approximately 2:00 a.m. on March 17, 2013 from Officer Hinds. He advised Douglas Thomson that his son, Leighton, was at the police station. Douglas Thomson expressed a wish to attend to see his son. Officer Hinds indicated that he would call back.

106Within approximately 15 to 20 minutes, Officer Hinds called back and again spoke with Douglas Thomson. According to Douglas Thomson, Officer Hinds advised him that that he had spoken to Staff Sergeant Rumford and that his son, Leighton, would be released into his care. Douglas Thomson lived on Main Street in Val Caron, about a 20 minute drive away. He told Officer Hinds that he was on his way to the police station.

107Douglas Thomson and his wife arrived at the police station. They spoke to a police officer (not identified by them), who stated: "I think things have changed". One of the persons to whom Douglas Thomson and his wife spoke was Constable Rizzi. In his evidence, Constable Rizzi indicated the following:

"…I had to attend outside to speak with Mr. Thomson's mom and dad who had arrived to collect him".

108According to Douglas Thomson, he and his wife had a conversation with Constable Rizzi, Staff Sergeant Rumford and to some lesser extent, Officer Hinds. After the discussion took place, Staff Sergeant Rumford left their presence. He soon returned and advised them that their son, Leighton, would not be released. No explanation was provided.

109The next day, the parents attended at the Sudbury District Jail to visit with their son. Their effort was in vain. They were told by a jail official, that they could not visit because they had failed to provide 24 hours' notice. They were also told that they needed to set up an appointment before attending at the jail.

110The parents were not told by anyone that their son Leighton would be attending WASH court that Sunday morning. WASH court that Sunday morning was held via video link. Justice of the Peace Kitlar presided from North Bay. A North Bay Crown attorney was also in attendance. There was no duty counsel present or available to assist Mr. Thomson. His matter was adjourned to the next day, namely Monday, March 18, 2013. The following was indicated by the court: "If duty counsel was present here today, there may be a situation where he could be released on a recognizance of bail with a surety".

111The availability of duty counsel was obviously completely out of Mr. Thomson's control. Moreover, his parents were not, at any time, made aware that WASH court would be in session. In the latter part of that afternoon at approximately 5:00 p.m. Mr. Thomson called his parents to confirm that he would be again held overnight because his matter had been adjourned to bail court the next day.

112Mr. Thomson's parents attended at bail court the next day (Monday morning). They were poised to act as sureties, but he had been released on his own recognizance. The bail order was made at 10:35 a.m. His father indicated that they first met with him at about 2:00 p.m.

113Approximately 36 hours passed from the time Mr. Thomson was arrested to the time that he was released. He spent the first night in a holding cell at the police station starting around 3:00 a.m. The next morning he attended WASH court via video link. He was returned to the police station. He underwent finger printing. He was returned to his cell.

114Later that day, he was transported from the police station to the Sudbury District Jail in a police van with two other prisoners. His hands and feet were shackled. Upon arrival at the Sudbury District Jail he was placed in a holding cell until being admitted. He was strip-searched. He had to take off all his clothes. He was required, as part of the process, to bend over and spread his buttock cheeks. He spent that day in range 12 with approximately 15 other prisoners. He shared a cell that night with other prisoners.

b) Leighton Thomson

115Mr. Thomson was questioned about why he was seen to be crying on the video while in Officer Roberge's presence. In reply, he stated that it was because he was disappointed in himself for letting his father down. He explained that in 2013, the vehicle was registered to his father's name because he could no longer afford to pay for the insurance. He said he felt badly because he knew he had gotten into an accident and had been accused of "DUI". He said that he "messed up".

116Mr. Thomson was questioned about his use of profanity during the course of the investigation. He explained that he was upset, discouraged and just mad at himself. He said that he took it out on the officers.

117Mr. Thomson acknowledged making utterances about harming himself. He said that he just "wasn't thinking". He denied being disruptive in his dealing with Constable Hinds but on this issue I prefer Constable Hinds' evidence. The evidence does support a finding that Mr. Thomson was obnoxious and defiant, however, not to the extent of derailing the investigation. Toward the end of his interview with Constable Roberge, Mr. Thomson had calmed down. He did comply with what was required for breathalyser testing.

118Mr. Thomson's evidence, in terms of his detention by and large is not in dispute. Matters involving his detention and upon which he testified shall be referred to later in these reasons.

Other Evidence

119It is certainly not clear how the decision to detain Mr. Thomson was arrived at. All police officers, including Officer Hinds who had charge of the investigation, indicated that the final decision rested with Staff Sergeant Rumford. Staff Sergeant Rumford did not testify. Crown counsel verbally indicated on the record that Staff Sergeant Rumford did not recall any specifics relating to his decision to not release Mr. Thomson.

120There is no evidence that Mr. Thomson was ever told why he was detained. Moreover, his parents, who had made a special trip to the police station to pick him up, were never provided with a reason (or reasons) for his detention.

121Police evidence does confirm that Mr. Thomson was at times belligerent and antagonistic. I have carefully watched the videotape taken while Mr. Thomson was in the presence of Constable Roberge. The video lasted approximately 50 minutes. Mr. Thomson appeared talkative but not threatening. He overstated issues he thought relevant to his arrest. By and large he was coherent. Throughout the interview, he was well-orientated and understood all questions posed. At times he was aloof and emotionally overwrought. These symptoms were likely not inconsistent with the consumption of alcohol.

122Mr. Thomson expressed disappointment in himself. He was, at times, emotionally distraught but for the most part and to a large extent because of the patience of Constable Roberge, he managed to calm down. Again here the symptoms displayed may have resulted because he had been consuming alcohol.

3:3(1) Was There a Breach?

123It is understood that at times, police do concern themselves about an accused person's ability to safely get home from the police station. Police, depending on the circumstances of the case, may be committed to assessing safety issues both respecting the accused person and others. These factors did not exist in this case. Mr. Thomson's parents, with whom he resides, made a special trip to the police station anticipating bringing him home. They expressed no concern about his demeanour or behaviour. According to the evidence of Douglas Thomson, he and his wife did not think their son would have presented any risk nor was there any hesitation on their part to safely bring him home. I have no reason to discount that evidence.

124The police were not able to articulate reasons for which Mr. Thomson was detained. All who testified attributed the final decision to Staff Sergeant Rumford. The gist of the evidence appears to be that Staff Sergeant Rumford was privy to the prevailing circumstances and was solely responsible for making the final decision.

125Mr. Thomson uttered several comments about wanting to harm himself. This was during the latter part of his dealings with Constable Roberge. These comments appear to result from his displeasure at being arrested. They are most consistent with the aloof attitude he displayed at times throughout the investigation. They could not have been taken seriously by police. There was no special action taken by police. In fact, all evidence points to Mr. Thomson having been treated in the same light as any other detained person in similar circumstances.

126At times, Mr. Thomson balked at directions. This occurred sporadically throughout the process but Officer Roberge who administered the breath tests, indicated as follows: "…his initial demeanour was belligerent and he was obviously upset or perhaps excited…and he became co-operative toward the end of my dealings with him…"

127It is most likely that at times police were annoyed with Mr. Thomson's attitude but on the whole he remained sufficiently compliant to enable the investigation to properly unfold. It is understandable that his demeanour may, to some extent, have factored into Staff Sergeant Rumford's decision to detain him. On the other hand, Mr. Thomson's comportment although at times bothersome, would not on its own justify his detention nor can it be assumed that it represented a determinative factor in Staff Sergeant Rumford's decision.

128It may well be that Staff Sergeant Rumford felt that he had a valid reason to detain Mr. Thomson. The difficulty here, however, is that any such reason (or reasons) has remained unexpressed. Hence, it is difficult, absent speculation or innuendo, for the court to identify the reason (or reasons) for which Mr. Thomson was detained on charges upon which, in the usual course, he would have been expected to have been released. Further, and as matters turned out, his detention ended up being for a lengthy period of time (approximately 36 hours) and involved several aggravating features.

129It is difficult to ascertain what if any weight was given to the fact that Mr. Thomson's parents were present at the police station and willing to take him home. It is evident that they were not consulted about any reason which led to the decision to detain their son.

130It was made clear by the Crown in his direct submissions to the court that Staff Sergeant Rumford would not be called to testify. The court was told that Staff Sergeant Rumford had no recollection of the incident, the inference being that his attendance at court would not be helpful. It also appears that Staff Sergeant Rumford would not have made any record or memo upon which he could refresh his memory.

131The list of factors militating against Mr. Thomson's detention include the following:

• He has no criminal record;
• He made no threats and was not violent;
• At no point was it necessary to restrain him;
• He resided with his parents in Val Caron;
• There is no evidence that he was required to take medication;
• He was adequately, physically in control of himself;
• There is no evidence of actual alcohol or drug addiction;
• He ultimately complied with breathalyser testing;
• There is no indication of any controversy with his parents;
• He had a good recent history of hard work. He was employed by the same company as his father;
• Both his parents were in attendance at the police station ready to receive him in their care;
• No reasons were proffered to the parents for his continued detention;
• No reasons were given to Mr. Thomson himself justifying detention;
• There were no outstanding charges.

132In summary Mr. Thomson is a resident of Ontario. He was arrested without a warrant. Pursuant to section 498 of the Code, the officer in charge was under an obligation to release him as soon as practicable under one of the forms of release unless he believed it was necessary in the public interest to detain him, or, having regard to all circumstances, detention was necessary to establish identity, secure or preserve evidence, prevent the continuation or repetition of the offence or another offence, insure the safety of any victim or witness or insure court attendance.

133Mr. Thomson's identity had been confirmed. Security or preservation of evidence was not in issue. Mr. Thomson's vehicle was not available for him to drive nor was he at risk to re-offend. There were no victims or witnesses requiring protection. There was no indication that he would fail to attend court. The only issue requiring a possible detention was whether it was necessary to do so in the public interest having regard to all of the circumstances.

134This is not a case where police decided to detain for a few hours to insure sobriety. The decision here made was to detain Mr. Thomson pending him being judicially released either at WASH court or the following Monday morning at bail.

135The issue of his release was not discussed with his parents. Mr. Thomson lived with his parents. He worked for the same employer as his father. His parents had been called and told that he was at the police station. They attended.

136It strongly appears that in these circumstances, it would have been beneficial for police to have discussed the issue of Mr. Thomson's release with his parents who were present and poised to bring him home. The parents were in the best position, had they been consulted, to alleviate concerns that Staff Sergeant Rumford may have had. After all, Mr. Thomson's parents were ready, willing and able to provide safe transportation and bring him home. Mr. Thomson lived with his parents and there is no evidence of any hesitation on their part to bring him safely home.

137I accept that Mr. Thomson exhibited indicia of impairment. On the other hand he was not severely intoxicated at the time. Any brief mention by Mr. Thomson of wanting to hurt himself must be taken in proper context. Any such comment was brief and on the heels of the disappointment that Mr. Thomson had in himself for getting into an accident and being arrested. Any such comment was rightfully not seriously taken by police. It was part and parcel of the unhappiness and displeasure Mr. Thomson displayed. Constable Roberge showed much patience in his dealings with Mr. Thomson and Mr. Thomson became relatively calm toward the end of the investigation.

138Aside from the possibility that Mr. Thomson's detention was necessary in the public interest, the decision to detain him could not, on the evidence heard, be supported on the criteria set out in section 498 of the Code.

139The difficulty here is that there is no evidence indicative of what Staff Sergeant Rumford was thinking at the time. He was not called as a witness because, according to the Crown, he could not recall the events. He presumably did not enter his reason (or reasons) for detention on any record or in a duty book.

140I must, in considering all of the circumstances, conclude that Mr. Thomson's detention was neither factually or statutorily justified. As a result I find that his detention was arbitrary and that his section 9 Charter right was violated.

3:3(2) What is An Appropriate Remedy?

141Mr. Thomson is seeking a stay of the charges a result of his section 9 Charter right being breached. In the alternative he seeks the exclusion of evidence including the evidence of the breathalyser readings.

142Counsel for the defence highlighted aggravating features touching upon Mr. Thomson's arbitrary detention. These were testified to by Mr. Thomson and are for the most part factually not in dispute:

• He spent the balance of the night (i.e. early hours of Sunday, March 17, 2013) in a holding cell at the police station;
• Following the decision to detain him, Mr. Thomson was not advised of any option to place a further call to counsel;
• Mr. Thomson was not made aware that his parents had attended at the police station and were willing to bring him home;
• He did not receive an explanation for the reason of his detention;
• He was placed in handcuffs and shackles for transportation to the Sudbury District jail on Sunday morning;
• Upon arrival at the Sudbury District jail he was strip searched;
• His parents were not advised about WASH court during the day on Sunday;
• No lawyer was present to assist Mr. Thomson;
• Crown counsel at WASH court indicated that Legal Aid chose not to authorize duty counsel to attend WASH court;
• At WASH court Mr. Thomson was told that if duty counsel were present he might be released on a recognizance of bail with a surety;
• Mr. Thomson's parents attended at the Sudbury District jail on Sunday but were told that because they did not have an appointment or did not provide 24 hours' notice they could not visit;
• Mr. Thomson spent the balance of Sunday and Sunday night in custody;
• His parents attended at bail court on Monday, March 18, 2013. They were not required to act as sureties. He was released on his own recognizance at 10:35 a.m.

143Mr. Thomson's "arbitrary detention" was for a period of approximately 36 hours. He did not have the benefit of counsel or duty counsel at WASH court and he was further detained.

144The test for the imposition of a judicial stay of proceedings is a stringent one. The majority of the Supreme Court of Canada in R. v. O'Connor, [1995] 103 C.C.C. (3rd) 1, at paragraph 82 held that it was only in the clearest of cases such a remedy was appropriate, where the prejudice to the accused's right to make full answer and defence could not be remedied, or where irreparable prejudice could be caused to the integrity of the judicial system if the prosecution continued. It is a serious remedy and has, at times, been referred to as a remedy of last resort.

145The O'Connor decision holds that in order to be granted this stay, an applicant must prove that the breach or the abuse of process affected the fairness of the trial or, a "residual" category where the prosecution is conducted "in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process".

In the O'Connor case Justice L'Hereux-Dube described the residual category in these terms:

"This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process."

146The O'Connor decision holds that before a stay can be considered two criteria must be met:

1. The prejudice caused by the abuse (the abuse i.e. here arbitrary detention for approximately 36 hours) will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

2. No other remedy is reasonably capable of removing that prejudice.

147As stated in this case the issue falls into the residual category wherein it is argued that the conduct relates to the integrity of the justice process. Additionally and after considering the above two requirements, the court should balance the granting of a stay of proceedings against the interest society has in having a final decision on the merits of the case. In other words, is the abuse which has given rise to the Charter breach sufficient to warrant a stay of proceedings, taking into account the full circumstances of the case.

148Each case must, of course, be considered on its own facts. The court must take into account the nature and seriousness of the impugned conduct, the circumstances of the accused, the charges he is facing and the interests of society in having the charges disposed of on its merits.

149On these facts, Mr. Thomson has no criminal record and he was operating a motor vehicle registered to his father after having consumed alcohol. He demonstrated bad driving for a considerable distance. There was no accident aside from Mr. Thomson's vehicle striking a snow bank. Although the vehicle was not in previous good shape, it sustained some cosmetic damage.

150Fortunately no one was hurt including Mr. Thomson. He managed to push the vehicle off the roadway after it stalled. Regrettably he was indignant and at times lacked a proper level of civility when dealing with police. Ultimately and more so at the police station he calmed down and co-operated to the point where the investigation was completed.

151Mr. Thomson was physically in control of himself. He displayed discontent and had several emotional outbursts when being interviewed by Constable Roberge. Having watched the videotape in its entirety, I am satisfied, generally speaking, that his lack of sobriety impacted his demeanour.

152Mr. Thomson was not threatening or violent. His parents were diligent in attending at the police station to pick him up. The circumstances of them being told upon their arrival at the police station that Mr. Thomson would not be released have already been referred to in these reasons.

153Objectively speaking Mr. Thomson was no threat to himself or others. He did make several brief remarks toward the end of his lengthy interview with Constable Roberge about hurting himself. Those comments, taken in proper context, were not looked upon seriously by police. He was treated similarly to any other detained person.

154His breathalyser readings were significantly high but below 160 milligrams in 100 millilitres of alcohol. A reading above 160 constitutes aggravating circumstances for purposes of sentencing.

155The circumstances of Mr. Thomson's detention were aggravated by a number of factors including an absence of sobriety monitoring by police for possible earlier release, a transfer to the Sudbury District jail in shackles, a strip search, a WASH court hearing without assistance, the absence of disclosure to his parents about WASH court, the inability of his parents to visit him at jail, his release on his own recognizance and the duration of the detention.

156There were no reasons provided to Mr. Thomson or his parents for his detention by the person who made the decision. No explanation was provided to the court by the person who made the final decision about Mr. Thomson's detention. The validity or reasonableness of the detention, upon charges which in the normal course calls for a release, cannot, absent speculation or inferences drawn from other officers who were not in charge of making a decision on detention, be adequately determined.

157Accused persons are usually released on these types of charges in accordance with the provisions of section 498 of the Code. What sets this case apart is the length of the detention without explanation in circumstances where Mr. Thomson's parents were expressly on site to pick him up after being told that he would be released.

158Simply stated the administration of justice misfired on this case. Mr. Thomson can certainly not get the lost time back. As a person unaccustomed to incarceration, there is no reason to disbelieve that the circumstances he experienced including the strip search were found by him to be quite disturbing.

159The granting of a stay on these facts may assist police to pay closer attention to the issue of detention of persons under investigation for similar offences. Also, police officers in charge of making an important decision on whether to release an accused person may consider making notes in order to refresh his or her memory on the reasons for detention.

160Generally speaking a prolonged period of imprisonment cannot be taken lightly. In this case the cumulative effect of the duration of the detention and the aggravating circumstances relating thereto calls for a stay of proceedings. A stay of proceedings in these circumstances outweighs society's interest in having the case heard on its merits.

161I have considered another remedy reducing the sentence upon a finding of guilt. To do so, however, on these facts would fail to reflect the seriousness of the Charter breach.

162After weighing all relevant considerations, in my view the seriousness of the Charter breach together with the unfair impact that the process as a whole had upon Mr. Thomson and his parents are such that to allow the matter to proceed would, in the unique circumstances of this case, impair the public's confidence in the administration of justice.

163I am mindful that this remedy must be cautiously granted. I am satisfied on these facts that this case is one of those clear cases calling for a stay.

164For the above reasons, a stay of proceedings respecting the Criminal Code charges is granted.

Released: August 25, 2014

Signed: "Justice Randall W. Lalande"