ONTARIO COURT OF JUSTICE
Court File and Parties
DATE: 2024 12 24 COURT FILE No.: Brampton 3111 998 22 311 02631
BETWEEN:
HIS MAJESTY THE KING
— AND —
RONITA LAL
Before: Justice G.P. Renwick
Heard on: 29-30 July and 17 December 2024 Reasons for Judgment released on: 24 December 2024
Counsel: R. Moir, counsel for the prosecution L. Adler, counsel for the Defendant, Ronita Lal
Ruling on ss. 7, 8, 9, 10(a), 10(b), and 11(d) Charter Applications
INTRODUCTION
1The Defendant is charged with one count of having an excess blood alcohol concentration within two hours of driving, contrary to s. 320.14(1)(b) of the Criminal Code. The Defendant did not raise the provisions of s. 320.14(5) in her defence.
2Essentially, the police received a call for service about a motorist who was possibly impaired by alcohol. Police ultimately attended at the home of the vehicle’s registered owner and found the Defendant asleep in the driver’s seat of the running vehicle, parked on her driveway. When later tested, her blood alcohol concentration was excessive.
3The parties agreed at the outset that the Defendant’s application to exclude evidence would be heard alongside the trial evidence. The trial was brief. Only two police witnesses testified. Exhibits were provisionally admitted, subject to the Charter rulings.
4The Defendant challenges the admissibility of the results of a “roadside” breath screening which provided the police the grounds to demand a sample of the Defendant’s breath for analysis. The parties agree that if the results of the breath screening are inadmissible, the basis for the breath demand evaporates, I cannot rely on the breath testing results, and an acquittal must follow. Conversely, if at least one of the Charter applications is not successful, the Defendant may be found guilty of the charge.
GOVERNING LEGAL PRINCIPLES
5In this case, because the prosecutor seeks to adduce evidence obtained from a warrantless search (the breath screening procedure), I must be satisfied on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was conducted reasonably: R. v. Collins, [1987] 1 SCR 265 at para. 23.
6Obtaining reasonable grounds does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable, rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, they need not be found to be correct.
7The standard of reasonable grounds to believe is credibly-based probability. Alternative explanations for observed signs of possible alcohol-related impairment do not undermine reasonable grounds, unless the officer unreasonably discounted information of which she was aware but failed to consider. Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable. The officer is entitled to rely on hearsay, unless she has a reason to doubt the truth of the information.
8Reasonable grounds are not proof on a balance of probabilities, but they involve being satisfied of the probability of a state of affairs. The officer can be mistaken in the belief, as long as her belief is reasonable and there was no reason for her to doubt the information she believed.
9The Ontario Court of Appeal affirmed these principles in R. v. Notaro, 2018 ONCA 408:
The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J. (sitting ad hoc) noted in Bush, at para. 70"the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so."
This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person.
10Relatedly, our Court of Appeal considered the standard for a warrantless arrest in R. v. Carelse-Brown, 2016 ONCA 900. At paragraph 28 of Carelse-Brown, the Court quoted from its decision in R. v. Golub, [1997] O.J. No. 3097:
In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
11By way of a roadmap, it will be helpful to outline the Charter arguments raised and the responses to them, the evidence and my findings, how the law intersects with the facts, and my conclusions on the Charter Applications.
POSITIONS OF THE PARTIES ON THE CHARTER APPLICATIONS
12The Defendant alleged that several Charter violations occurred during the investigation of the Defendant, the initial breath screening, and following her arrest and during the provision of her rights to counsel. The ss. 8, 9, and 10 Charter arguments were framed this way in the Application:
PCs Koziak and Ruffolo Violated Ms. Lal’s ss. 7, 8 & 9 Charter Rights
i. …When [the police] crossed the threshold of her property, they did so without any consent or judicial authorization and without any of the exigencies which would override the requirement of a warrant;
ii. They also did all this without reasonable and probable grounds to arrest her…;
Ms. Lal Had a Reasonable Expectation of Privacy
iii. Ms. Lal had a reasonable expectation of privacy while she slept in a car parked on her own driveway…;
The Issue of Implied Licence
iv. As a rule, police need judicial authorization or exigent circumstances to enter onto private property. The courts have recognized a narrow exception - the implied license to approach the door of a residence and knock: See e.g., R. v. Evans, [1996] 1 SCR 8. However, this exception is not limitless and should not be taken to erode the rights and expectation of privacy which envelope a person’s house and property;
v. …In Lotozky, the court found that the officers had a “legitimate basis” for entering the driveway because they had observed the vehicle in question being driven in an “unusual fashion” on a public road prior to questioning the driver on the driveway: Lotozky at para. 36, emphasis added;
vi. …In conclusion, there was no basis for the police to enter onto Ms. Lal’s driveway, absent specific consent, judicial authorization or exigent circumstances – none of which were [sic] present here;
vii. …In short, there was nothing preventing police from seeking a tele-warrant, as expressly provided in s. 487.1 of the Criminal Code;
PCs Koziak and Ruffolo Violated Ms. Lal’s Section 10 Charter Rights
viii. …In Suberu, the Supreme Court was unambiguous: “the police must immediately inform [the individual] of the right to counsel as soon as the detention arises: R. v. Suberu, 2009 SCC 33 at para 41, emphasis added;
ix. …After arresting Ms. Lal, the officers – quite correctly – started to inform Ms. Lal about her rights to counsel. But then they got busy.
13Orally, the Defendant made overlapping, intertwined, and distinct arguments to support her Applications under the Charter.
14The s. 8 Charter arguments bookend the police interaction with the Defendant:
i. The police had to trespass to even begin the investigation of the Defendant in her vehicle, lawfully parked on her private property;
ii. The police had no reasonable grounds to suspect that the Defendant was involved in any illegal behaviour when they approached her vehicle;
iii. The police had no reasonable grounds to suspect that the Defendant had alcohol in her body within three hours of operating a motor vehicle before making a demand under s. 320.27 of the Code;
iv. The search of the Defendant’s vehicle before her arrest was unlawful; and
v. The police ought to have obtained a tele-warrant to take the Defendant’s breath sample for an initial screening.
15In terms of s. 9, there were two distinct arguments:
i. The police had no information respecting whether the Defendant was the driver who had been the subject of the call for police service; and
ii. The police trespassed upon the Defendant’s driveway to gather incriminating evidence against her (the “Evans” breach).
16Section 10 of the Charter was also implicated in several respects:
i. If the police ever suspected that the Defendant had alcohol in her body within three hours of operating a conveyance, they never articulated that to the Defendant during her initial detention (the s. 10(a) violation);
ii. The Defendant was not given her rights to counsel when she first awoke and was detained (the first s. 10(b) breach);
iii. The Defendant was arrested for a suspected excess blood alcohol offence and several minutes elapsed before the Defendant was given her rights to counsel while police performed administrative tasks (a second s. 10(b) violation); and
iv. The Defendant did not receive a reasonable opportunity to exercise her right to counsel while at the scene of her arrest (a third s. 10(b) violation).
17The prosecution responded that the Defendant lacked any reasonable expectation of privacy in her vehicle, which was parked close to the public roadway. The prosecution relied on the Court of Appeal’s decision in R. v. Lotozky and the Supreme Court’s decision in R. v. McColman to support the authority of the police to investigate a drink-driving offence while the suspect is no longer on a public highway. The prosecutor conceded that s. 8 was violated when P.C. Koziak searched the Defendant’s vehicle.
18Armed with the common law authority provided by s. 320.27(1)(b) of the Criminal Code, the police were entitled to require the Defendant to submit to a breath screening once they had a reasonable suspicion that she had operated a vehicle within the preceding three hours with alcohol in her body.
19In terms of the alleged s. 10 violations, the prosecution submitted that the police conduct was at all times in compliance with the common law which provides for the brief suspension of the rights to counsel during drink-driving investigations. Any delays subsequent to the Defendant’s arrest were momentary, for officer safety, and inconsequential. Even if the Charter was technically breached, there should be no exclusion of the breath screening result, which would terminate the prosecution.
20In the next part, I will outline some of the evidence taken during this trial and the findings I have reached. I do not propose to reiterate all of the evidence taken. It is sufficient to note that during and subsequent to the trial I have taken several opportunities to review the evidence from my notes, the transcripts of the evidence, and the digital recording of the proceedings. Despite any exchanges with counsel during submissions, I came to no conclusions on the evidence until all submissions were received and the law was reviewed.
THE EVIDENCE AND FINDINGS
The Testimony of Police Constable Andrew Ruffalo
21On 15 June 2022, P.C. Ruffalo received information from his dispatcher that there was a possibly impaired driver who had recently left an address in Mississauga. He attended the location and spoke with the complainant. There he learned that there had been a religious ceremony, a driver had attended and consumed alcohol, she was acting aggressively, and she left in her vehicle. The police were given the vehicle colour and a license plate number.
22Using that information, P.C. Ruffalo obtained the address of the registered owner of the vehicle associated to that license plate. After checking the area proximate to the complainant’s address, he attended the address of the vehicle’s owner.
23At 3:13 p.m., the officer arrived at the Defendant’s address, where he found her inside her vehicle, which was still running. The Defendant’s vehicle was properly parked on her driveway. When the officer approached the vehicle his body-worn camera (“BWC”) video shows that he had his alcohol screening device (“ASD”) with him.
24The officer testified that the driver appeared to be asleep inside the running vehicle, which appeared to be “in park.”
25P.C. Ruffalo made many attempts over several minutes, alone and then with his partner, P.C. Koziac, to revive the driver. Once the Defendant awoke, the officer explained his presence and asked if she had had anything to drink. He testified that he had smelled alcohol. The Defendant claimed that she had not had a drink since the day prior, but she “appeared like confused, a little bit disoriented.” The officer made a demand for her to provide a breath screening into an ASD.
26On her third attempt, the Defendant successfully completed the screening and registered a “fail.” This meant, “that the person’s blood alcohol exceeded the, the limit of alcohol.” Consequently, at 3:29 p.m., P.C. Ruffalo arrested the Defendant for “impaired over 80.”
27Cross examination revealed that the witness received the radio call from his dispatcher at 2:26 p.m. When asked if the Defendant was arrested for impaired driving, it was suggested that there were no grounds for that offence. The witness testified: “I had reasonable and probable grounds to suspect she was driving under the influence of alcohol.” When clarified what was actually suspected, P.C. Ruffalo testified: “Of driving while impaired by alcohol.” Once he arrived at the Defendant’s home, he remembered having dealt with the Defendant as a witness for a prior occurrence at that home.
28Cross-examination also led the witness to say: “I had grounds to believe that the driver of that motor vehicle was driving under the influence of alcohol.”
29P.C. Ruffalo was also clear about his intention: “My intention after her waking up was to investigate the impaired driving.” He confirmed that he did not call for a tele-warrant or any kind of search warrant or arrest warrant. P.C. confirmed that his “purpose” was to investigate a possible criminal offence. However, at no time did the officer tell the Defendant that she was being detained, nor did he initially provide her with her rights to counsel.
30When asked that nobody had given the police permission to be on the driveway, P.C. Ruffalo testified:
Correct, sir, but it was for the safety of the, of the community, the people if she were to drive back out and she could, you know, cause death or if she’s driving under the influence of impaired.
31The constable could not recall, at first, when he smelled the odour of alcohol coming from the Defendant. P.C. Ruffalo refuted the suggestion that the first time he smelled alcohol was back at the division: “I put “slight,” which is what I smelled approaching the car.” It was suggested that this was inaccurate and that the first time he smelled alcohol was following the arrest, during the rights to counsel. He could not recall. Despite this, the witness was clear that the complainant had told police that the Defendant was seen drinking alcohol, “the place that she was, she left from at that address” and “The complainant had also smelled alcohol on the accused prior to her leaving.”
32Though the witness could not specify which legislation, he believed he had the authority to tow the Defendant’s vehicle from private property once the Defendant was arrested for a drink-driving offence.
33When asked why he did not facilitate the Defendant’s access to duty counsel “then and there,” P.C. Ruffalo testified: “I didn’t have any space for a private conversation at that time.” He believed that the “whole room” at the police station “would be a more private setting.” This evidence was attenuated when the witness confirmed that he has permitted detainees to call a lawyer from his police car, however, it was unclear whether those occasions occurred before or after this arrest.
34Toward the end of his cross-examination, P.C. Ruffalo testified that there was no plan with P.C. Koziac to arrest the Defendant and take her with the police prior to the breath screening procedure.
35In re-examination the officer confirmed the test for an ASD demand (reasonable suspicion of someone driving under the influence of alcohol) is a lower threshold of proof than the test to arrest (reasonable and probable grounds to believe someone is impaired).
The Testimony of Police Constable Natalie Koziac
36Much of this witness’ evidence was similar to the first witness, however, there were some differences in their narrative, based on their recollections.
37Both witnesses agree that P.C. Ruffalo was the arresting officer, or the “officer in charge.”
38During cross-examination, this witness was questioned about the purpose of her presence at the Defendant’s home. The witness indicated that they attended the Defendant’s address to investigate the information that they had received from the complainant.
39During cross-examination, P.C. Koziac was asked about the lack of any detection of an odour of alcohol. P.C. Koziac was then questioned about her decision to search the Defendant’s car before the Defendant was under arrest. Her testimony was:
Q: Madam, you told us that you searched the vehicle and you told us, and we can see from the timing that that was before she was ever placed under arrest…
A: Yes.
Q: …but that you said, in your mind, she was under arrest.
A: In my mind, she was impaired, and correct, if I said that…
Q: If you said what?
A: I believed that she was impaired.
Q: Did she get charged with impaired?
A: No, she got charged with fail ASD demand.
Q: She got charged with failing an ASD demand, I see. Why didn’t you see fit to arrest her for impaired if you’re saying that, in your mind, she was impaired?
A: We have two different officers on scene, and each officer interprets things differently and, you know, we didn’t have a discussion. Perhaps we should have had a discussion beforehand, but P.C. Ruffalo went with the ASD demand and he carried on with the investigation.
40From all of the evidence, including the BWC footage, I find that P.C. Koziac was of the view that she had reasonable and probable grounds to arrest the Defendant for impaired driving shortly after her arrival at the Defendant’s residence.
41Though it is not necessary to determine these Applications, P.C. Koziac’s view that she had grounds to believe an offence had been committed shortly after arriving at the Defendant’s home, was not unreasonable. She knew that someone had observed the Defendant drinking, they had observed that the Defendant smelled of alcohol, she was aggressive and she had left in her vehicle. When the police arrived at the Defendant’s home about 30 minutes later, the Defendant was passed out in her car, while it was running, parked on the driveway. The Defendant failed to wake for many minutes as two police officers called her name through the slightly opened sun-roof, knocked on the car, knocked on the driver’s window, banged on the roofline, shook the car, and tugged at the Defendant’s clothing that was hanging outside the closed driver’s door.
42I do not find that this testimony in any way diminishes the reasonable suspicion (a driver possibly under the influence of alcohol) that P.C. Ruffalo had at the same time.
The Body-Worn Camera Footage Evidence
43P.C. Ruffalo’s BWC was turned on once he was on the Defendant’s driveway, on the passenger side of her vehicle. The audio portion of the videotape takes approximately 28 seconds to begin after the start of the footage. We see the interaction of P.C. Ruffalo with the Defendant’s vehicle as she appears motionless inside. P.C. Koziac’s vehicle is seen driving towards the location at 0:00:09 and that officer is then seen walking up the driveway at approximately 0:00:50.
44There has been no apparent manipulation of P.C. Ruffalo’s BWC footage and I accept it as entirely accurate. The video contents and the time and date stamps on the upper right corner of the footage appear to be accurate. Where the events are captured on either BWC, I accept that evidence as superior to the memories of P.C. Ruffalo or P.C. Koziac to the extent that there are any inconsistencies.
45The BWC of both officers establishes that P.C. Koziac may well have formed an intention to arrest the Defendant once she awoke. At 0:03:57 of her video footage she asks, “Should we just break the window or what. I don’t’ think we need a ASD for that.” Shortly after at 0:04:58 of the video she is heard to tell the resident at the Defendant’s home, “Well, she’s coming with us. She was driving impaired, so.”
ANALYSIS
There Was No s. 9 Charter Violation
46I find as a fact that P.C. Ruffalo attended the Defendant’s home to investigate a motorist for impaired driving. When he first arrived it is obvious that P.C. Ruffalo did not have subjective grounds to arrest the Defendant. This is why he brought an ASD with him as he approached the Defendant’s vehicle. At about six minutes after he arrived, P.C. Ruffalo called on his police radio for an ambulance, as a “precautionary” measure, because, “she’s still breathing but we can’t get her to wake up.”
47The investigation continued with P.C. Ruffalo’s first three questions once the Defendant awoke and rolled down her driver’s window:
i. What’s going on?
ii. Where are you coming from? and
iii. Have you been drinking today.
48The Defendant’s answers, her behaviour, and the prior complaint gave rise to objectively reasonable grounds to suspect that the Defendant had alcohol in her body while she had been operating her vehicle. Given the uncertainty in P.C. Ruffalo’s evidence, I do not find that it is proven to any degree that he personally smelled alcohol before making the ASD demand. Nonetheless, his demand was appropriate and lawful. The police investigation was grounded in common sense, a desire to protect the public, and a concern for the Defendant’s well-being. There was nothing arbitrary about the initial police interaction with the Defendant and her detention for a drink-driving investigation.
The Police Had an Implied License and Statutory Authority to Enter onto Private Property to Investigate the Defendant
49The prosecution’s reliance on McColman may be misplaced. That decision considered the authority of the police to effect a stop of a motorist on private property to ascertain sobriety under provincial legislation, where the intention to stop the motorist crystalized before the motorist left the highway. The Supreme Court agreed with the lower appeal courts that provincial legislation permissive of random sobriety checks did not authorize random traffic stops on private property. I do not find that the judgment assists to determine the legality of a statutory traffic stop for a drink-driving investigation despite the fact that the “McColman, supra, at para. 49.”
50There are at least two sources of police authority to detain motorists for criminal investigations on private property: the common law and s. 320.27 of the Criminal Code.
51In R. v. Lotozky, the Court of Appeal considered the lawfulness of criminal investigations conducted by the police while on private property. In that case, in response to a complaint of a possibly impaired driver, police drove to the registered address for the vehicle. Police waited and eventually observed the defendant drive onto his property and park before they approached him to investigate.
52Speaking for the majority, Rosenberg J.A. considered whether four elements of the police conduct constituted a search: the attendance upon the driveway, tapping on the window to get the driver’s attention, questions about a driver’s license, ownership, and insurance, and a breathalyzer demand. The latter was clearly a search or seizure authorized by law. However, if the police had trespassed, the search would not have been carried out reasonably. Of the remaining steps the court held:
At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. Put another way, not every trespass on to private property by police can constitute a search. I would not place a possible trespass on to a driveway open to public view in the category of a search or seizure.
As regards the other two aspects of the police conduct, I tend to think that merely tapping on the window, like peering into a window with a flashlight, does not involve a search. Asking routine questions of a motorist about licence, ownership and insurance similarly would not seem to be the type of questioning that would lead to a finding of a sufficient intrusion into a reasonable expectation of privacy. See R. v. Grant, 2006 ONCA 18347 at para. 36. Finally, cases concerning questioning of motorists in drinking and driving situations have turned on issues such as right to counsel and detention; not search and seizure. See most recently: R. v. Orbanski; R. v. Elias, 2005 SCC 37. Obviously, the fact that the courts have not dealt with this element of the drinking and driving paradigm as a search issue is not determinative, but it does suggest to me that in most cases the search and seizure threshold is not crossed until the breathalyser demand is made. Elias at para. 41, is also helpful in clarifying that checking sobriety of drivers is lawful at common law. If the police conduct was unlawful in this case it was only because it took place on the driveway as opposed to a public highway. Since, as I explain below, I have concluded that the police were not unlawfully on the driveway, the fact that they questioned the respondent on his driveway to check his sobriety did not render that particular investigative technique unlawful.
Accordingly, I am of the view that the violation of the respondent's s. 8 rights must relate to the fact that the police made the demand while they were on private property. If, contrary to the findings of the trial judge and the appeal judge, the police were lawfully on the property when they made the demand, the search was reasonable having been authorized by a reasonable law and carried out in a reasonable manner.
53The appeal court held that the doctrine of implied license permitted the police attendance onto the private driveway. Relying on one of its earlier decisions, the Court of Appeal affirmed the principle that property owners permit members of the public, including the police, to attend the door of a residence to communicate with the residents. To be sure, the implied license to attend onto private property also imports a resident’s right to withdraw the implied license by asserting the right to privacy and the right to be left alone.
54The court in Lotozky held that the context of the police visit was important:
A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an open area that is visible to the public. The scope of the implied invitation must be analyzed in that context.
The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motor vehicle, does not in my view exceed the bounds of the implied invitation, provided that the officer has a legitimate basis for entering on the driveway. Interpreting the common law in this way is, in my view, consistent with the broader principle identified by Sharpe J.A. that licences may arise by implication from the nature of the use to which the owner puts the property. As I have said, the use to which this property is put is to park motor vehicles and it is an area of the property that is open to public view.
The officers in this case had a legitimate basis for entering on the driveway. They had received a report that the driver of the car associated with the address was apparently impaired.
55To summarize, the police were obligated to investigate a possibly impaired driver. That led them to the Defendant’s residence. From the street, it was obvious that the same vehicle observed by the complainant was parked on the Defendant’s driveway. The police walked a short distance onto the driveway, approached the vehicle, determined that it was still running, and a female appeared to be unconscious while in control of the car. She was unresponsive, her clothing was trapped in the driver’s door, and it was reasonable to suspect that she was the driver observed earlier who was believed to have consumed alcohol prior to driving home. I find that the Defendant never withdrew the implied license used by the police to lawfully enter onto her driveway to continue their investigation and interact with the Defendant.
56The Criminal Code provides a secondary source of police authority for approaching the Defendant on private property. I find that the statutory provisions governing drink-driving investigations include breath screening demands made well after a motorist has ceased to operate a motor vehicle. Although the statute is silent about where a screening demand may be made, I conclude that the police were authorized to make a breath screening demand of the Defendant when she was found in the care and control of her car on her driveway.
57P.C. Ruffalo was understandably concerned about the possibility that the Defendant was the driver referred to by the complainant, some 40 minutes prior. The Defendant’s car was the same as the one observed by the complainant. It was still running when the police arrived. The Defendant was passed out in the driver’s seat. It was obvious to the police that the Defendant was the suspect driver who had moved the car from the other location given the vehicle description, the complainant’s observations consistent with alcohol consumption, the Defendant’s prolonged unconscious state, the fact that her clothing was trapped in the driver’s door, the fact that the vehicle was running, the Defendant’s apparent confusion upon waking, her initial unwillingness or inability to lower the driver’s window, and her answers to P.C. Ruffalo’s questions.
58Pursuant to their lawful authority to require a motorist to provide a breath sample into an ASD for screening, the police may require the motorist to “accompany the peace officer for that purpose.” In these circumstances, I find that the Defendant had no expectation of privacy or the right to be left alone by the state. Instead, she was compelled by law to respond to the reasonable and lawful demand to exit her vehicle and accompany the police for a breath screening.
59P.C. Ruffalo was well aware of this statutory authority and he reasonably exercised it in the circumstances. I find that the statutory authority provided by subs. 320.27(1)(b) is a complete defence to the allegation of an unconstitutional detention.
60I am unconvinced that P.C. Koziac’s state of mind or words had any impact upon P.C. Ruffalo or his authority to conduct a breath screening once he reasonably suspected the Defendant of having alcohol in her body within three hours of operating her vehicle.
61Lastly, I find that P.C. Ruffalo understood and scrupulously complied with the statutory regime permitting breath screening and there was no unreasonable search or seizure of the Defendant’s breath. Any alleged interference or comments by P.C. Koziac had absolutely no bearing on the arresting officer’s beliefs, intentions, or conduct.
62It is conceded that the search of the Defendant’s car by P.C. Koziac, before her arrest, violated the Defendant’s s. 8 Charter right.
Section 10 of the Charter Was Minimally Violated
63Within seconds of the start of her interaction with P.C. Ruffalo, it was obvious that he was investigating the Defendant for a drink-driving offence. His third question (“Have you been drinking today) was focussed on that very subject. His fourth question, “when was your last drink” was also an indication of the intention of the police. Within 55 seconds of the start of their interaction, P.C. Ruffalo began his demand for the Defendant to provide a sample of her breath into an “approved screening device.” By this point, P.C. Koziac had also indicated that they were investigating “an impaired driving call.” In the circumstances, I am not satisfied that it is proven on a balance of probabilities that there was a violation of the Defendant’s s. 10(a) right to be promptly advised of the reason for the Defendant’s detention.
64The Defendant asserts that her rights to counsel were violated when she was initially detained without being told of her s. 10(b) Charter rights. Drink-driving investigations are an area where the common law permits the brief suspension of s. 10(b) to ensure that motorists are stopped no longer than absolutely necessary for these important public safety measures. Accordingly, there was no breach of the Defendant’s s. 10(b) rights when the police did not immediately advise the Defendant of her rights to counsel once she awoke.
65After the Defendant failed the breath screening she was arrested at 15:29:51 (3:29 p.m.). The Defendant was briefly searched and then lodged in the back seat of the police cruiser at 15:31:21. It is appropriate to search and secure an arrestee immediately to ensure control over the person for public and officer safety. This brief delay was appropriate. I do not find that this delay impacted the Defendant’s 10(b) rights.
66P.C. Ruffalo then spoke briefly with P.C. Koziac and obtained the Defendant’s wallet and driver’s license from her. He then walked around to the front passenger side of his vehicle to obtain his yellow notes, containing the printed rights to counsel questions. At this time the Defendant began crying and asking the officer questions. After sitting in the front of the police car, P.C. Ruffalo attempted to respond to the Defendant before beginning the rights to counsel at 0:17:50 or 15:34:00.
67In all, from the time of arrest until the start of the rights to counsel there was a delay of just over four minutes. In this time, the Defendant was searched, handcuffed, lodged safely, responded to, and then given her rights verbatim from the Officer’s yellow notes.
68I find that there was a very brief delay before the provision of the Defendant’s rights to counsel and that the Defendant’s s. 10(b) right to counsel was violated momentarily after she was safely taken into police custody.
69The Defendant also complains that after she indicated that she wanted to speak with Duty Counsel at 15:38:16 she was denied this opportunity until she arrived at the police station. P.C. Ruffalo testified that he called Duty Counsel at 4:08 p.m., and the Defendant spoke with Duty Counsel at 4:20 p.m.
70P.C. Ruffalo testified that he wanted to provide the Defendant an opportunity to speak in private with counsel. This is not an unreasonable position to take. I am unconvinced that the officer’s decision to delay the implementational component of the rights to counsel was imprudent or motivated by any ill-will. The Defendant was emotional. She had just been arrested. She was not entirely cooperative. She vacillated from profanities to tears. The decision to provide her access to counsel in a controlled environment specifically designed to ensure privacy was appropriate in the circumstances.
71I would also note that the Defendant did not have a cell phone with her. The law is not clear that the police must provide their cell phone to the Defendant or how that could be accomplished while the Defendant is handcuffed. It is obvious that the police cannot hold the phone or otherwise remain present to assist an arrestee while they speak with legal counsel.
72As a result, I am not satisfied that it is proven on a balance that the Defendant’s s. 10(b) rights were violated when the arresting officer held off providing an opportunity for the Defendant to speak with Duty Counsel until they were at the police station.
Analysis Under Section 24(2) of the Charter
73Having dealt with the Applicant’s arguments concerning the nature of the ss. 8 and 10(b) violations and the police conduct leading up to them, I will now turn to whether or not the admissibility of the breath screening result in the Applicant’s trial would bring the administration of justice into disrepute.
74The parties agree that the three-prong test from R. v. Grant, 2009 SCC 32 governs the exclusion of evidence under s. 24(2) of the Charter.
75Section 24(2) 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 by requiring a qualitative analysis of the long-term effect tainted evidence has upon public confidence in the criminal justice system.
76To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:
i. The seriousness of the Charter-infringing state conduct;
ii. The impact of the breach(es) on the Charter-protected interests of the Applicant; and
iii. Society’s interest in the adjudication of the case on its merits.
77The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.” R. v. McGuffie, 2016 ONCA 365 at para. 62.
Seriousness of the Charter-Infringing State Conduct
78This case involves a violation of significant Charter rights. One officer searched the Defendant’s vehicle before she was arrested. This was deliberate, entirely unwarranted, and contrary to the Defendant’s s. 8 Charter right. Also, the evidence could not establish that the police exercised the required degree of diligence in providing the Defendant with her s. 10(b) rights with appropriate haste. Rather, the arresting officer became delayed by a very brief discussion with the other officer on scene, he responded to a call from his dispatcher about the station he would attend for breath testing, and he momentarily delayed the provision of information to the Defendant that was critical to her interests. That said, the officer refrained from trying to obtain any other evidence against the Defendant during this time.
79I do not conclude that the violation of the s. 10(b) right was deliberate. I find that the violations in this case were of modest seriousness. The Defendant’s car would eventually be towed once the Defendant had been arrested. It would have been appropriate to search the vehicle for valuables and to inventory the contents. This mitigates the seriousness of the s. 8 violation. Regarding the s. 10(b) breach, the seriousness would have been magnified if the delay had extended, or if the police attempted to conscript the Defendant to incriminate herself.
80In these circumstances, I find that this factor nudges moderately toward exclusion of the breath screening result.
The Impact of the Breach Upon the Applicant’s Charter-Protected Interests
81In this case, the Charter violations were preventable. However, contrary to the allegations made by the Defendant, the behaviour of the police did not establish a cavalier attitude regarding constitutional rights. I found that for the most part, the police officers were professional and acted respectfully toward the Defendant. I also note that during the period after her arrest, the Defendant did not entirely assist the process. She was crying. She asked P.C. Ruffalo questions, and she used profanity as well.
82Nonetheless, it bears observing that:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
83The breaches in this case were avoidable. Fortunately, the effects of the breaches were short-lived. The search would eventually have been constitutionally compliant, had P.C. Koziac better understood what was happening and the limits of vehicle searches following an arrest. Within minutes, the Defendant was read her rights to counsel.
84Situating the impact of the Charter violations involve a consideration of the effects of the breaches. In this case, the Defendant was eventually arrested and she lawfully came into police custody. At the time, the police were not actively seeking the Defendant’s cooperation for any questioning or other incriminating procedures. This entire process has repeatedly been found to be “minimally intrusive,” despite the attendant costs to the detainee’s liberty, security of the person, and psychological well-being. Moreover, in the end, the Defendant was given her rights to counsel and she exercised them fully. I find that the effects of the Charter violations were slight and momentary.
85I find that in the Defendant’s circumstances, this factor is neutral and does not pull in favour of excluding the breath screening result.
Society’s Interest in the Adjudication of the Case on its Merits
86In McGuffie, the Ontario Court of Appeal court spoke about the tension between the three considerations:
The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. 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. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.
87The breath screening result is reliable and necessary to ground the basis for the breath demand and ultimate evidential breath testing. This militates in favour of admitting the breath screening result.
88The failures here were brief, although preventable. The prosecutor submits that the breaches in this case were minor and technical. I agree. I have assessed each breach as moderately serious. While unintended, each violation was foreseeable and preventable. The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. The right to be free of unreasonable search and seizure and the right to know that one may contact counsel of one’s choosing without delay are at the core of protecting the autonomy, liberty, and security of our residents from the authority of the state.
89There is no evidence that the failures of P.C. Koziac and P.C. Ruffalo are long-standing, widespread, or systemic within the Peel Regional Police. I tend to the view that disapprobation of their conduct by the court is commensurate with the misbehaviour occasioned.
90I do not find that the long-term effect of admitting the breath screening result in the circumstances of this case would bring the administration of justice into disrepute. To the contrary, the exclusion of reliable, crucial evidence that was discoverable and unrelated to the violation of the Defendant’s Charter rights would undermine confidence in the justice system.
CONCLUSION
91I am not satisfied on a balance of probabilities that any evidence ought to be excluded in this trial, despite having found that the police minimally breached the Defendant’s s. 8 and s. 10(b) Charter rights.
92The Application is dismissed.
Released: 24 December 2024 Justice G. Paul Renwick