Ontario Court of Justice

Central West Region Brampton, Ontario

Between:

HER MAJESTY THE QUEEN

-and-

MAN-LUNG NG

Reasons for Ruling

Duncan J.

Facts

[1] The defendant is charged with impaired and exceed 80, offence date December 18, 2010. He has brought a Charter argument to exclude the breath test results based on section 8 and 9. These reasons address those issues.

[2] At around 4 am acting sergeant Jones, travelling southbound on Glen Erin, saw the defendant's vehicle coming the opposite direction travelling at an excessive speed. Jones turned around and followed. At the next intersection the defendant then made a left turn, not from the dedicated turn lane but from the passing lane. It then continued on Thomas street straddling two marked lanes. Jones activated his lights. The defendant did not stop but continued for another 100 meters or so, pulled onto a side street and then stopped.

[3] When Jones approached the car he found the defendant sitting in the driver's seat eating a bowl of Tim Horton's chili. He was coughing, sneezing, "full of cold". Jones asked if he was ok and whether he is taking any medication to which the defendant answered "No". He had some difficulty retrieving his driving documents. He appeared distracted. Jones did not want to get too close to him and asked if he had been drinking. The defendant said he had had a beer two hours ago.

[4] Jones requested that the defendant come and sit in the police car while he "did his checks and everything". While in the back seat the defendant was very talkative saying things like "I was nearly home; can you let me go? I only had one pint two hours ago." Jones started to smell alcohol and decided to do an ASD test. He did not have a machine and called for one to be brought to the scene. Since he anticipated some delay he cautioned the defendant and read the rights to counsel. He explained what was taking place. The defendant said "Okay, I had one beer and a shot of vodka two hours ago." He continued to talk, cough and sputter. The smell of alcohol was now strong.

[5] Constable Gorrill arrived with the ASD at 4:22, having received the request at 4:14. Jones gave her the grounds he had gathered and Gorrill took over the investigation. The defendant was taken out of Jones's vehicle to be moved to Gorrill's for the purpose of the test. He stumbled slightly as he got out and appeared to be 'really unsteady" as he walked the short distance. "You could see he was concentrating on walking steady, walking straight." At Cst. Gorrill's cruiser, but while still standing outside on the curb, he grabbed clumsily at the ASD she was holding, bumping into her. She told him to step back and he tripped as he stepped back on the curb. At this point, having regard to all she had seen and been told, she formed the opinion that the defendant was impaired by alcohol and placed him under arrest.

Arbitrary Detention

[6] The first argument, a novel one, is that the defendant had been subjected to arbitrary detention when he was directed to sit in Jones's police car while the computer checks were conducted. It is argued that there was no legal authority for such a direction, that it was not reasonably necessary; it is only then that the smell of alcohol was detected from which the entire ensuing investigation and breath samples derived. The argument, first raised by Mr Lindsay in October, received unexpected support from the judgment of the Supreme Court in R v Aucoin released on November 30.

[7] In Aucoin the defendant was stopped for a traffic violation relating to improper use of license plates. He had been drinking contrary to novice driver restrictions. He was going to be ticketed for both offences under the provincial traffic statute and the car was going to be impounded. There was a large crowd in the area attending a festival and the officer wanted to avoid the possibility of the defendant disappearing into the crowd. He decided to have him sit in the police car while the paperwork was completed. This necessitated a safety pat down search – on consent - which uncovered cocaine in merchantable quantity.

[8] The Court held that the pat-down search was unreasonable and a violation of section 8 of the Charter. However the majority of the Court sustained the admission of the evidence under 24(2). As for detention, the majority held that the issue was not whether the officer had legal authority to detain but rather whether he was justified in exercising that authority as he did in the circumstances. It would be justified if it was "reasonably necessary". The increased restriction on liberty in placing the detainee in the rear of the police cruiser in itself required a standard of reasonable necessity; the inevitable pat down search that would accompany that placement amounted to an aggravating factor (see footnote 2).

[9] On the facts of Aucoin, the Court concluded that there were other reasonable alternatives for the officer to follow – such as waiting for nearby back-up – so the decision to place the defendant in the police car was not reasonably necessary. While the Court focused on section 8 and did not deal with a discrete section 9 claim, it concluded that detaining the defendant in the back of a police car would be an unlawful detention. (Para 44).

[10] In this case, the justification for having the defendant sit in the police car was not as specific as in Aucoin. When asked regarding his authority Jones answered:

He was in his vehicle. I'd asked him to turn the engine off. The engine was off, it was freezing cold. I asked him to sit in the back of my vehicle and I also wanted to run the checks. At four o'clock in the morning, I was by myself. I just wanted to make sure that there couldn't be any problems…… I've done [the same thing] on many occasions.

In summary, the measure was taken for two purposes – for the defendant's comfort against the cold and as a caution against the possibility of non-specific problems arising for the officer alone in the early morning hours.

[11] Crown counsel Ms. Lepchuk concedes that the justification given does not rise to the level where it can be said that the measure taken was reasonably necessary. She argues however that, as in Aucoin, the evidence should not be excluded.

[12] Defence counsel argues that the case for exclusion is aggravated by the officer's concession that he frequently resorts to such a practice. I would agree if the practice had been previously denounced as Charter-offending but before Aucoin, pronounced almost 2 years after the event in question, no court had so declared nor had it even been identified as an issue. [1]

[13] In my view, the circumstances here favour admission more strongly than in Aucoin. In particular:

• There is no evidence that the defendant was subjected to a search at all and even if he was, the evidence in question – odour of alcohol – was not obtained by such a search.

• While the back seat detention may not have been reasonably necessary, it was not groundless – there was some sense to it both for the benefit of the defendant and the officer. Other courses of action that might satisfy both concerns are not readily apparent. Indeed the Crown's concession may be debatable. While courts should not permit serious rights intrusions to be justified on the grounds of vague possibilities of trouble arising, this was a benign measure taken that was not disproportionate to the risk.

• There was no flagrant disregard for or ignorance of Charter rights. The novelty of the detention point has been mentioned above. Note also the general attentiveness to Charter rights revealed by the giving of rights to counsel when ASD delay was anticipated. This suggests a higher than usual awareness of the nuances of the law and respect for its observance. Good faith is obvious.

[14] Another point should be mentioned, though not necessary to my decision: Officer Jones agreed with defence counsel in cross-examination that he did not believe that he had the basis for an ASD demand before he smelled alcohol, when the defendant was in the back of the police car. He said that it was "in the back of my mind initially when he said he had a beer a couple of hours ago" but he only decided to do so when he could smell the alcohol. In my view, the officer's belief was incorrect – on an objective basis he did have grounds for an ASD demand with the admission of alcohol consumption and the fact of driving – not to mention the bad driving. That the officer believed otherwise was an error favourable to the defendant. The point is that the defendant was, objectively speaking, legally liable to detention in a police car or anywhere else - even if the officer didn't think so initially and only came to that conclusion moments later. Accordingly, the impact on his Charter right against such detention was negligible if not non-existent.

[15] In conclusion, assuming there was a violation of section 9 in this case, I am satisfied that it is not a case for exclusion of the breath test results.

Reasonable Grounds

[16] It is also argued that Officer Gorrill did not have reasonable grounds for the arrest and the breath demand.

[17] The law in this area has been fully set out in the leading cases of R v Censoni [2001] OJ No 5189 and R v Bush (2010) 2010 ONCA 554, 259 CCC (3d) 127. In assessing the sufficiency of grounds, it is important to keep in mind that the issue is whether there were grounds to believe in impairment to even a slight degree.

[18] It suffices to say that in my view, the evidence in this case set out above, provided reasonable grounds for the arrest and demand. [2] Accordingly, this argument is rejected.

January 7, 2013

B Duncan J.

P Lindsay for the defendant; A Lepchuk for the Crown

Footnotes

[1] It had probably been raised before, but not in any well known or authoritative case. None were cited when the point was first argued. Counsel and the Court had been unaware of the lower court decisions in Aucoin. The officer could hardly be faulted for not having any better knowledge. Moreover the point is far from an obvious one where knowledge or recklessness as to Charter infringement might be imputed.

[2] The summary is a compendium of the indicia noted by the two officers. Gorrill did not note any unsteadiness in the short walk between the police cars. Even without that factor, I conclude that she had sufficient grounds.