ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TYLER DOIRON
Before Justice P.T. O’Marra
Heard on December 6, 2021
Reasons for Judgment released on December 7, 2021
N. Jaswal counsel for the Crown
B. Starkman counsel for the defendant Tyler Doiron
P.T. O’Marra J.: (orally)
Introduction:
1On July 12, 2020, Mr. Doiron was charged that he was operating a motor vehicle while his ability was impaired by alcohol (“Impaired Driving”) and while having a blood alcohol concentration ("BAC") in excess of the legal limit ("Over 80").
2Mr. Doiron brought a Charter application to exclude the breath test results, all evidence of impairment, and all other evidence obtained after the alleged breaches of his ss. 8, 9, and 10(b) rights.
3Quite fairly, during final submissions, the Crown conceded that Mr. Doiron was arbitrarily stopped or detained by Sergeant Kyle, and therefore section 9 was violated.
4On consent of the parties, the trial evidence for the Crown, and the evidence called on the Charter application proceeded in a "blended" fashion. Four witnesses testified: Constable Hewitt (the arresting officer), Constable Galliher (the officer that arranged the tow), Sergeant Kyle (the detaining/stopping officer), and Constable Bawa (the qualified breath technician). Documents related to the operation of the approved instrument and a Certificate of Qualified Technician were introduced provisionally, subject to the Charter application, as exhibits on the trial.
5The trial took less than two hours to complete. Submissions were made in less than one hour. I commend both counsel for their presentation of the evidence, and the focus on the singular issue for me to decide: Should the breath readings and evidence of impairment be excluded from the trial pursuant to section 24(2) of the Charter?
6In my view, the breathalyzer readings and all evidence of impairment must be excluded from the trial to do otherwise would bring the administration of justice into disrepute. These are my reasons for doing so. However, I will now turn to the evidence in this case.
The Trial Evidence:
The Stop:
7The key testimony in this trial came from, as he was then, Sergeant Kyle. He is now a field constable with the RCMP (for the purposes of my judgment I shall refer to him as Sergeant Kyle). He was a patrol sergeant that stopped and detained Mr. Doiron and his passenger at 3:31 a.m. on July 12, 2020. I accept virtually all of Sergeant Kyle’s evidence. Much, if not all of his evidence was uncontentious.
8On July 12, 2020, Sergeant Kyle was employed with the Peel Police Service. At approximately 3:31 a.m., he received information from his dispatch that there four unknown males, on foot attempting to enter car doors around Penbury Gate and Radford Drive area in the City of Brampton.
9He put himself on the call as he was close by on Linkdale Road. As he turned onto Penbury Gate, he could see a red Honda Civic that faced westbound at the T-intersection of Radford and Penbury. There were two males in the car. The driver, Mr. Doiron looked over his left shoulder towards the Sergeant and continued to drive.
10Sergeant Kyle testified that he followed Mr. Doiron in basically a circle back to the intersection. However, he observed Mr. Doiron driving at approximately 20 km and in the middle of the road. He remarked given that there were cars parked on both sides of the street, it was not that unusual for a car to drive down the middle of the street. However, he found the reduced speed suspicious and it aroused his “Spidey sense.”
11While he followed Mr. Doiron, Sergeant Kyle ran a check on the licence plate. The registered owner was female and resided in Orangeville.
12As I stated earlier, Mr. Doiron did a loop on Radford and had returned to the t-intersection. However, on this occasion he stopped well passed the stop line. At this point, Constable Hewitt arrived in the area in her marked cruiser. Sergeant Kyle testified that he felt that something was “amiss” about the car, and that it was somehow connected to the initial call. He initiated a traffic stop.
13Sergeant Kyle approached the driver side window which had been already rolled down. He told Mr. Doiron that he was investigating a complaint in the area about people breaking into cars. Sergeant Kyle testified that he could smell alcohol; however, he was uncertain if the odour came from Mr. Doiron or the passenger in the front seat. He did not recall seeing any other passengers. Sergeant Kyle felt that Mr. Doiron seemed “dopey” and was “slow in his speech.” Mr. Doiron indicated to Sergeant Kyle that they were at a party at a residence located at 13 Radford Drive. Mr. Doiron did not acknowledge that he was involved in any car thefts.
14Sergeant Kyle directed Mr. Doiron to exit his car and turned him over to Constable Hewitt in order that he could focus his attention on the passenger to see if he was involved in the original call.
15As he turned Mr. Doiron over to Constable Hewitt, he advised her that he was uncertain where the smell of alcohol came from. He had no further interaction with Mr. Doiron.
16In cross-examination, Sergeant Kyle confirmed that the information that he had about the call and written in his notebook was “four young males in area trying to break into cars, heading towards Penbury.” He did not have any description of their ethnicity. He was aware that the 4 males were on foot.
17He agreed that it was not unusual for a driver to look in the direction of a marked police cruiser and then drive slowly.
18In cross-examination, Sergeant Kyle admitted that he had a “hunch or an instinct” that Mr. Doiron and his passenger had broken into cars and were leaving and that was his reason for stopping the vehicle.
The Arrest and Evidence of Impairment:
19Constable Hewitt took over Mr. Doiron’s detention. She walked Mr. Doiron to her cruiser. She observed that Mr. Doiron had the strong smell of alcohol on his breath. He was swaying and having a hard time maintaining his balance. His speech was slow and halting. He did not make a lot of sense.
20At 3:39 a.m. Constable Hewitt arrested Mr. Doiron for impaired driving. He was grudgingly handcuffed.
21At 3:43 a.m. he was given his rights to counsel, cautioned, and given a breath demand. All of which he understood.
22At 3:50 a.m. they left the area and drove to 22 Division. While Mr. Doiron was being driven to 22 Division, he was very emotional. He went from crying to being very belligerent to the officer. As he leaned forward the smell of alcohol was much stronger. They arrived at 4:04 a.m. While waiting in the sallyport, Mr. Doiron started to bang his head on the partition inside the cruiser.
23Mr. Doiron spoke to duty counsel.
24At 4:40 a.m. he was taken to the breath room and turned over to Cst. Bawa, a qualified breath technician.
25Constable Hewitt remained in the breath room. While in the breath room she observed that Mr. Doiron’s eyes were red. He continued to rage and cry. He had difficulty opening the plastic wrapper for the mouthpiece, and at one point dropped the mouthpiece on the floor.
The Intoxilyzer Test:
26Mr. Doiron provided two samples of his breath, that yielded BAC results of 322 mg of alcohol at 4:55 a.m. and 312 mg of alcohol at 5:25 a.m.
Arbitrary stop and detention:
27Based on the testimony of Sergeant Kyle, the Crown and the defence agreed that there was no statutory basis nor a basis in the common law for the detention of Mr. Doiron. I agree. Therefore, I must find that the detention was arbitrary and that there was a violation of Mr. Doiron’s rights under section 9 of the Charter.
SECTION 24(2) CHARTER ANALYSIS:
28Section 24(2) of the Charter recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct with a qualitative analysis of the long-term effect upon public confidence in the criminal justice system. See: R. v. Deokaran, [2018] O.J. No. 5338, para. 32.
29To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:
(1) The seriousness of the Charter-infringing state conduct.
(2) The impact of the breach the Charter-protected interests of the Applicant; and
(3) Society's interest in the adjudication of the case on its merits. See: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.
The seriousness of the Charter-infringing state conduct:
30The constitutional infringement arose from the initial detention. This was not a situation that involved a Charter violation by an unsophisticated state actor or a novice who was uncertain of his authority in an unsettled area of the law. See: R v Simpson, 1993 CanLII 3379 (ON CA), [1993] O.J. No. 308 (CA), para. 61.
31Sergeant Kyle was not acting in bad faith when he stopped Mr. Doiron. However, he decided to arbitrarily stop Mr. Doiron based on a “hunch” or his instinct. I am satisfied that he was not cognizant of the fact that he was violating Mr. Doiron’s Charter rights as the Crown has submitted. He was not wilful or flagrant. Nevertheless, ignorance cannot excuse this kind of behaviour. See: R v Hawkins, [2012] OJ No 3134, para. 26. Sergeant Kyle was an experienced police office that should have known that a stop based on his ‘Spidey sense’ tingling was not constitutional.
32I find that the infringement was quite serious as it arises from a fundamental misapprehension of several regulatory, criminal, constitutional and common laws.
33I find that the seriousness of the Charter breach militates in favour of excluding the breath samples and the evidence of impairment.
The impact of the breach on the Charter-protected interests:
34Mr. Doiron’s stop, detention and arrest were illegal from the very beginning due to Sergeant Kyle’s mistake and ignorance of the law in this area. The interests engaged and deprivation caused by this illegal stop was the deprivation of liberty, privacy, dignity, and mobility interests. It can be considered significant and highly intrusive. See: Grant, R. v. Brown, [2002] OJ No 1569 and R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494.
35There was a significant impact on Mr. Doiron’s Charter rights. Mr. Doiron complied with the demands of him by the arresting officer, and provided breath samples, which became incriminating evidence against himself.
36Motorists have the reasonable expectation that his or her liberty will not be interfered with lightly. See: Hawkins, para. 29. Justice McKinnon in R v McGlashen [2004] OJ No 468, at para. 23 stated “… to permit the stopping of vehicles and the detention of drivers without articulable cause would be a lamentable day for the freedom and liberty of our citizens.”
37Thus, I conclude that the impact on Mr. Doiron’s section 9 rights was significant and favouring exclusion.
Society's interest in the adjudication of the case on its merits:
38This factor cuts both ways. On the one hand, a segment of the community favours the admission of constitutionally tainted evidence that will lead to the discovery of the truth and the adjudication of the case on the merits. But on the other hand, the introduction of such evidence and the truth-seeking function must be weighed against maintaining the integrity of the criminal justice system. Grant, para. 82, and R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, at para. 15.
39I need not resolve this dispute. In R. v. McGuffie, 2016 ONCA 365, at para. 63, Justice Doherty wrote,
If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.
40The Crown cited a recent decision from the Supreme Court of Canada, R. v. Omar, [2019] SCC 32, in which the majority of the court adopted the Justice Brown’s dissent in the Ontario Court of Appeal decision found at 2018 ONCA 975 and overturned the majority decision and granted the appeal. This was case that resulted in the unlawful seizure of a loaded handgun. In the Court of Appeal Brown J.A. had issued a strong dissent arguing that if in the long term courts hope to retain popular support "in the real world context" they must be very sensitive to public disgust with gun crimes (see para. 135). The Crown therefore argues that even if the police investigation in the present case was flawed, on the strength of that recent decision I should not ignore the prevalence of drinking and driving offences in the Region of Peel and the extraordinary high readings are at issue. In other words, the Crown argues that the third factor should militate towards and overwhelm the analysis in favour of inclusion. I agree that the third factor favours inclusion, but not to the extent that the Crown submits.
41In R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692 a decision released by the Supreme Court just nine days after the court released its reasons in Omar, the majority of the court again stated that where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admission. See: para. 305 and R. v. Iniguez, [2020] O.J. No. 412, para. 92. (SCJ).
42It is somewhat difficult to reconcile Omar with the decision in Le, given the very brief reasons of the Supreme Court in Omar, however, a strong argument can be made that the court was not taking a contrary position to its considered analysis in Le. See: Iniguez, para. 93.
43There is no mathematical formula. A court must examine all the circumstances in the context of the excluding evidence under section 24(2). It is essential that the seriousness of the charge does not overwhelm the other factors relevant to the s. 24(2) analysis. See: Grant, at para. 84; and R. v. Paterson, 2017 SCC 15, at para. 56.
44The first two factors make a strong case for exclusion of the breath sample results in this case. The third Grant factor only slightly diminishes the analysis, without altering the result.
Conclusion:
45I have found that Sergeant Kyle impermissibly stopped and detained Mr. Doiron seized his breath samples and gathered evidence of his impairment without lawful authority. The law requires the exclusion of this evidence in the circumstances of this case.
46Mr. Doiron is acquitted of both charges.
Released: Orally December 7, 2021
Signed: Justice P.T. O’Marra