Ontario Court of Justice

Date: November 23, 2017

Court File No.: Ottawa 16-A11455

Between:

Her Majesty the Queen

— and —

Chris Paul Hogervorst

Before: Justice P.K. Doody

Heard on: August 9, 2017 and October 2, 2017

Reasons for Judgment released on: November 23, 2017

Counsel:

• James Wilson, for the Crown
• Mark Ertel, for the defendant

Doody J.:

Part 1: Facts and Issues

[1] Charge

The defendant is charged with operating a motor vehicle on June 14, 2016 while disqualified from doing so, contrary to section 259(4) of the Criminal Code.

[2] Issues

There is no question that Mr. Hogervorst had been disqualified from driving within the meaning of that term in section 259. The issue is whether the Crown has proven beyond a reasonable doubt that Mr. Hogervorst was driving on June 14, 2016. The defendant submits that his statements to the investigating officer in which he admitted that he had no driver's licence and that he had been driving that day were obtained in breach of section 9 and section 10(b) of the Charter of Rights and Freedoms and should be excluded from evidence under section 24(2); or, alternatively, that they should not be admitted for the purpose of proving the substantive offence because to do so would render the trial unfair, contrary to the principles established by R. v. Coutts (1999), 45 O.R. (3d) 288 (C.A.) and elaborated on in R. v. Orbanski; R. v. Elias, 2005 SCC 37.

Part 2: Facts

(a) Cst. Sabourin followed a car from the road to a dealership parking lot

3Just after 6:30 a.m. on June 14, 2016, Cst. T. Sabourin of the Ottawa Police Service was sitting in her cruiser in the parking lot of a Tim Horton's, on Donald Street at the corner of St. Laurent Boulevard. She noticed a car go past her. After passing her, the vehicle accelerated northbound on St. Laurent, heading north and then turning left onto McArthur Avenue, heading west. Immediately after turning on to McArthur, the car turned left into a car dealership parking lot.

4Cst. Sabourin pulled out of the parking lot, turned right on St. Laurent, and followed the car, turning left onto McArthur. As she was driving, she entered the car's licence plates into her computer. She drove past the car as it turned left into the dealership.

5A very short time later, she learned from the computer that the owner of the car was disqualified from driving – disqualified by a judge's order, and not just suspended under the Highway Traffic Act (and therefore committing a criminal offence if the owner had been driving the car). She immediately did a U-turn, drove back and entered the dealership parking lot.

6She did not immediately see the car. There were other cars parked in the lot. She drove around those cars and zig-zagged down a lane or lanes between them. When she got to the back of the parking lot, she saw the car parked at the edge of the lot.

(b) The defendant was standing beside the car

7I find that the defendant was standing beside the car when Cst. Sabourin arrived. I do not find that she saw him getting out of the car.

8While Cst. Sabourin's notes state that she saw the defendant get out of the car, she testified at trial that she did not recall that. She could only recall that she saw him standing beside the car. The Crown did not apply to have the notes admitted under the past recollection recorded exception to the hearsay rule. Nor did Cst. Sabourin vouch for the accuracy of her notes, one of the four requirements of admitting prior statements as past recollection recorded. (R. v. Richardson, [2003] O.J. No. 3215 at para. 24 (C.A.))

(c) I cannot conclude that the defendant was the driver on the basis of Cst. Sabourin's observations

9Cst. Sabourin testified that she recognized the defendant as the man who had been driving the car. However, she had only a fleeting glimpse of the man driving the car as it drove past her while she was sitting in the parking lot. The only description she could give of that man was that he had "general facial features" and was Caucasian. She recalled that his hair was dark coloured but she had no notes of his hair colour. She testified "all I know of his face was that he was brushcut and a Caucasian male." She did not recall anything about the clothes he was wearing. She testified that there were facial features that she recognized that day that made her know "it was the same guy", but she did not remember what they were and did not note them in her book. She also identified the defendant in the courtroom as the driver.

10Identification evidence is subject to inherent frailties, regardless of the credibility of the witness. Eyewitness identification evidence is "inherently unreliable". Many wrongful convictions have resulted from faulty, albeit convincing, eyewitness identification, even in cases where multiple witnesses have seen the same person. The difficulties are exacerbated where the circumstances of the identification are not conducive to an accurate identification. Courtroom identification is so weak that it is of almost no value. (R. v. Goran, 2008 ONCA 195; R. v. M.B., 2017 ONCA 653 at para. 29)

11Identification evidence is strengthened where the identifying witness can point to unique identifiable features of the person being identified. (M.B., para. 46)

12The evidence of Cst. Sabourin identifying the defendant as the driver of the car she saw on Donald, St. Laurent and McArthur cannot be the basis of a finding by me that the defendant was the driver. In my view, the fleeting nature of her initial glimpse when compared with the much longer time she spent with the defendant in the dealership parking lot and her inability to provide any significant identifying characteristics of either the driver or the defendant make her evidence so weak as to be no evidence. Her courtroom identification is of even less weight than such evidence normally is because of the time she spent with the defendant in the parking lot, and her perusal of his OHIP card, as described below.

13I do not accept her evidence that when she saw the defendant standing beside the car in the parking lot she recognized that he was the driver.

(d) Cst. Sabourin was conducting a Criminal Code investigation for driving while disqualified, not a Highway Traffic Act investigation for driving with a suspended licence

14Cst. Sabourin testified in cross-examination that when she drove into the dealership parking lot and then spoke to the defendant, she was investigating whether he had committed the crime of driving while disqualified as a result of a judge's order. She said that she was not investigating a Highway Traffic Act offence, but a Criminal Code offence. I accept this evidence.

(e) The defendant told Cst. Sabourin that he had no licence and admitted driving that morning

15Cst. Sabourin approached the defendant as he was standing beside the car and asked him for his driver's licence, proof of insurance, and the car's registration papers. He told her that he did not have a licence. He produced an OHIP card to identify himself. He also said "I don't normally drive, today I just have a doctor's appointment."

16The defendant concedes that those statements were voluntary.

(f) The defendant was never told why he was being detained or of his section 10(b) rights

17Cst. Sabourin testified that she believed she was authorized to detain the defendant and ask him to identify himself both under the Highway Traffic Act and because she was "a police officer investigating an offence". She never advised the defendant of the reason that he was detained. Nor did she tell the defendant that he had a right to speak to a lawyer or provide him with an opportunity to do so.

18She gave the following evidence:

Q. Do you see yourself as having any duty to the person that you're detaining now for investigative purposes before you start asking him questions and getting him to produce documents?

A. In regards to …

Q. Well, do you have to tell him the reason why he's being detained?

A. I was, well, yeah, eventually.

Q. Okay. But when does that, when in the sequence would that duty arise?

A. Typically, I ask for the information and then I provide an explanation.

Q. Okay. So the first thing that you do when you approach him is, you ask him for information so you can determine whether he's committing an offense or not. Right?

A. Yes

Q. And then once he provides you with enough information so that you could arrest him, then you tell him you're under arrest and you tell him what he's under arrest for, right?

A. Once I'm satisfied with his identification, yes. Then I proceed by that means.

Q. Okay. You don't see yourself as having any obligation to say, look, this is the reason why you're being detained and you can call a lawyer right now before I ask you questions, do you?

A. Not at that point.

Q. No. Is there any point in time when you detain somebody when you have to tell him why they're being detained and that they have a right to call a lawyer?

A. Well, I always tell people when they're being detained, yes.

Q. Well, did you tell him he was being detained?

A. I use the word "detained". I don't know. But I did tell him that he couldn't leave until the investigation was complete. What words I used, I don't recall at that time.

Part 3: Analysis

(a) Cst. Sabourin could not rely on the Highway Traffic Act to detain the defendant on the dealership property and ask him to identify himself or to state whether he was the driver of the vehicle

19Section 33 of the Highway Traffic Act provides:

33 (1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

Identification on failure to surrender licence

(3) Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification.

20The word "driver" is defined for the purpose of the Highway Traffic Act in the following way: "a person who drives a vehicle on a highway". "Highway" is defined to include a place "any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof." A parking lot of a commercial establishment is not a highway.

21Crown counsel relied on the Court of Appeal decision in R. v. Hajivasilis, 2013 ONCA 27, for the proposition that the provisions of the Highway Traffic Act apply to areas that are not "highways" as that term is defined in the Act. He takes that case too far. At paragraph 12 of that decision, Doherty J.A. notes that the definition of the word "driver" incorporates the term "highway" and therefore, at least arguably, incorporates within its definition the limitation found in the definition of the word "highway". In my view, obligations imposed upon "drivers" by sections of the Highway Traffic Act that use that term are inapplicable to private parking lots. There is a long line of authority for that proposition. (R. v. McLelland, 2012 ONSC 7207 at para. 19)

22Crown counsel submitted that the Highway Traffic Act applied in this case because Cst. Sabourin had followed the car onto the parking lot, relying on R. v. Boughen, [2002] O.J. No. 4060 (C.A.). In that case, the Court of Appeal held that a police officer was justified using her authority under the Highway Traffic Act to detain a motorist in a parking lot when she had noticed that he had a tail light burnt out, did a U-turn, and followed him into a parking lot. In my view, however, the circumstances in that case are different from Mr. Hogervorst's case. The defendant in Boughen was seen by the officer getting out of his car in the parking lot.

23Cst. Sabourin did not see the defendant getting out of the car. He was not a "driver" at the time she detained him and she did not know that he was the driver of the car which turned into the dealership parking lot. She had a reasonable suspicion that he was the driver, but she did not recognize him as being the driver. She detained him in order to determine whether he was the driver and whether he was disqualified from driving. When she detained and questioned him, the Highway Traffic Act did not authorize Cst. Sabourin to detain the defendant, produce a driver's licence, and identify himself.

24Nor does section 33 require that a "driver" tell the police whether he or she was driving at any particular point in time. This is an element of the offence that Cst. Sabourin was investigating. Even if she did have authority under section 33 to ask the defendant to identify himself, she did not have authority under that section to compel that information.

(b) Authority to detain under the Highway Traffic Act cannot be used to suspend section 10(b) rights during a criminal investigation

25In any event, Cst. Sabourin was investigating the defendant to determine whether he had committed the criminal offence of driving while disqualified, not the Highway Traffic Act offence of driving while his licence was suspended. While a brief stop of a vehicle for purposes of a valid Highway Traffic Act investigation does not trigger section 10(b) rights, a Criminal Code investigation does. The Crown cannot justify a denial of section 10(b) rights on the basis that if this was a Highway Traffic Act investigation that denial would be valid. It was not. (R. v. Mhlongo, 2017 ONCA 562 at paragraphs 49-51)

(c) Cst. Sabourin lawfully detained the defendant on the dealership parking lot because she had reasonable suspicion that he had committed a criminal offence

26Cst. Sabourin was investigating to determine whether the driver of the car had breached the Criminal Code prohibition on driving while disqualified, and not the Highway Traffic Act prohibition on driving while the driver's licence was suspended.

27She had a reasonable suspicion that the defendant had been driving the car, and that he was disqualified from driving. She agreed that he was not free to leave, and that she told him that he could not leave until the investigation was complete. As she put it, he was free to leave "if he is not the guy" – the owner of the car who was disqualified from driving – but not until that had been determined.

28I conclude that, as the Crown has conceded, the defendant was detained as that word is used in section 9 and section 10 of the Charter of Rights. That detention was lawful under the general authority of police to detain persons for the purpose of investigation where the police have reasonable suspicion to believe that the person has committed a criminal offence. The detention was not arbitrary and did not breach section 9. (R. v. Mann, 2004 SCC 52; R. v. Suberu, 2009 SCC 33 at para. 33)

29The authority to detain a person for investigative detention does not compel the detainee to answer questions posed by the police. (Mann)

(d) The defendant's identification and admission that he had been driving was obtained in breach of section 9 and section 10(b) of the Charter of Rights

30Section 9 of the Charter requires that a person detained for investigative purposes be advised, in clear and simple terms, of the reason for his detention. (Mann, at para. 21) The defendant was not so advised. That was a breach of section 9.

31Once an individual is detained for investigative purposes, section 10(b) of the Charter is engaged and guarantees the right to retain and instruct counsel without delay and to be informed of that right. The police must execute those duties immediately upon detention and cannot be fulfilled at a later time. (Suberu, at paras. 37-42)

32Cst. Sabourin did not do so. She proceeded to question the defendant and obtain admissions from him before providing him with a right to counsel. That was a breach of section 10(b).

(e) The defendant's admission that he had been driving is excluded under section 24(2)

33Mr. Ertel, counsel for Mr. Hogervorst, submits that I should exclude the statements of the defendant to Cst. Sabourin. The test is that established by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. In determining whether to exclude evidence under section 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(a) the seriousness of the Charter breach,

(b) the impact of the breach on the Charter-protected interests of the defendant, and

(c) society's interest in the adjudication of the case on its merits.

(i) The Charter breach was serious

34The defendant was detained by Cst. Sabourin without being told why he was being detained or told he could speak to a lawyer before being questioned. As she admitted, her practice was to detain persons so that she could determine whether she could obtain the information she needed in order to give her reasonable and probable grounds to make an arrest. Only once she obtained that information would she arrest the person. That is what she did in this case.

35The Supreme Court of Canada described the purpose of section 10(b) in this way at paragraph 40 of Suberu:

[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of their right to liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees to regain their liberty, and guard against the risk of involuntary self-incrimination.

36Cst. Sabourin's actions were designed to have the defendant incriminate himself by admitting that he was the driver – an element of the offence she was investigating - before he could be advised of his rights to decline to give her that information. In my view, this was a serious breach of his rights.

37Furthermore, Cst. Sabourin testified that she believed that she had the authority to detain individuals "as a police officer investigating an offence". She does not have that authority unless she has reasonable grounds to suspect that the individual being detained is implicated in the criminal activity under investigation, taking into account all the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference. (Mann, at para. 34) She did have those grounds in this case. But she thought that she could detain persons merely because she was investigating an offence. This is an unreasonable error about her authority to interfere with citizen's liberty. It cannot be said to be an error made in good faith. (Mann, at para. 55)

38Similarly, Cst. Sabourin testified that she did not tell persons being detained of the reason for their detention as soon as she detained them. She only did so "eventually".

39For all of these reasons, the breaches of section 9 and 10(b) were serious.

(ii) The impact of the breaches on the defendant were serious

40As a result of Cst. Sabourin's failure to tell the defendant that he could speak to a lawyer, he was deprived of his right to receive advice that he did not have to tell her whether he had been driving the car that day. This led to him incriminating himself on the very charge being investigated.

41As Doherty J.A. wrote at paragraph 80 of R. v. McGuffie, 2016 ONCA 643:

The appellant's interests protected by s. 10(b) of the Charter were completely compromised by the police conduct. Detained persons are constitutionally entitled to know of their right to that advice, and to a reasonable opportunity to access that advice. Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.

42I conclude that the impact of the breaches on the defendant were serious.

(iii) Society's interest in adjudication of the case on its merits does not justify admitting the evidence

43The third inquiry favours admission of the evidence. It is essential to the Crown's case. Society has an important interest in adjudication of cases on their merits.

(iv) The evidence should be excluded under section 24(2)

44The Court of Appeal has held that where the first and second inquiries make a strong case for exclusion of the evidence, the third inquiry will rarely, if ever, tip the balance in favour of admissibility. (McGuffie, at para. 63) It does not necessarily follow, however, that a "2-1 score" automatically leads to "exclusion" winning over "admission". Each case requires a balancing of the assessments under each line of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. (Mhlongo, at para. 76)

45After considering all of the circumstances, I conclude that the evidence should be excluded. The importance of police officers understanding and complying with their obligations when conducting investigative detentions, and the serious impact of Cst. Sabourin's failure to do so on the defendant's rights, compel to me to conclude that this is the appropriate result.

Part 4: Conclusion

46Since I have concluded that the statements by the defendant of his identity, and his admission that he was the driver of the car, should be excluded, it is not necessary that I consider the defendant's alternative submission that the statements should not be admitted on the substantive elements of the offence as a result of the principles set out in Coutts and Orbanski.

47The statements I have excluded are essential to the Crown's case. Consequently, the charge is dismissed.