Court File and Parties
Court File No.: Brampton/11-015413 Date: 2015-06-01 Ontario Court of Justice
Between:
Her Majesty the Queen
- and -
Gregory Evans
Before: Justice James Stribopoulos
Heard on: February 4, 5, and March 31, 2015
Reasons for Judgment released on: June 1, 2015
Counsel
Maeve A. Mungovan ............................ for the Crown
The defendant, Gregory Evans ............................ on his own behalf
STRIBOPOULOS, J.:
I. Introduction
[1] The defendant, Gregory Evans, is charged with two offences; operating a motor vehicle while his ability to do so was impaired by alcohol and while his blood alcohol level exceeded the legal limit, contrary, respectively, to sections 253(1)(a) and 253(1)(b) of the Criminal Code.
[2] Late on the evening of Friday, December 9, 2011, the defendant was directed to stop his vehicle as part of a roving sobriety check-stop. Soon after approaching the defendant and beginning to interact with him at the roadside, it became rather apparent to the police officer that stopped him that the defendant's ability to operate a motor vehicle was impaired by alcohol. The defendant was therefore arrested for that offence. Once at the police division, the defendant ultimately provided breath samples that revealed his blood alcohol concentration to be well in excess of the legal limit.
[3] At his trial, the defendant, who represented himself, essentially conceded the case against him on both charges. However, he argued that the charges should be dismissed because of violations of his Charter rights. In effect, he sought the exclusion of the incriminating evidence proffered against him by the Crown.
[4] Not surprisingly, without any legal training, the defendant's constitutional complaints were less than focussed. However, at some point prior to trial the defendant had been represented by counsel who served and filed a Notice of Application; claiming that the warrantless seizure of the defendant's breath samples violated section 8 of the Charter and seeking the exclusion of evidence under section 24(2). The defendant maintained that application at trial, thereby putting the Crown to its burden of demonstrating that the seizure of his breath samples was lawful and thereby Charter compliant.
[5] After the trial commenced it also became apparent that the defendant wished to challenge the constitutionality of his detention. In particular, his cross-examination of the police officer that pulled him over on the evening in question made clear that he took exception to being stopped after he was seen leaving a bar and entering his vehicle. The defendant seemed to suggest that the targeting of bar patrons in this manner represented an improper form of investigative profiling. However, after the court explained to the defendant the relatively unfettered authority of the police to stop motor vehicles to check on driver sobriety, he sensibly abandoned this aspect of his defence.
[6] Finally, by the end of the evidence at trial it was apparent that the defendant had potential claims under both subsections 10(a) and 10(b) of the Charter. In apprising the defendant of these additional Charter claims and inviting submissions from the parties with respect to them, I was mindful of my duty, as the trial judge, "to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect." I was similarly cognizant of my obligation, when faced with admissible and uncontradicted evidence regarding the infringement of an accused person's Charter rights, "to enter upon an inquiry to ascertain whether such an infringement had occurred."
II. The Evidence at Trial
[7] The Crown called three witnesses at trial: the officer who initially arrested Mr. Evans (Sergeant Pannozzo), as well as a second officer who arrived on scene to assist with the arrest and transport Mr. Evans to the police division (Constable Rumley). In addition, the Crown also called the qualified (breath) technician who collected breath samples from Mr. Evans (Constable Holmes). I will briefly summarize the relevant evidence of each witness.
[8] A more detailed summary of the evidence of Sergeant Pannozzo and Constable Rumley is necessary, as there is a material discrepancy between their testimonies regarding the time at which Constable Rumley arrived at the scene of Mr. Evans' arrest. My finding as to which officers' testimony is to be preferred on that issue is of significance to some of the Charter issues raised. Hence, I must provide a bit more detail in terms of their respective testimony so that I can properly explain why on that issue I ultimately prefer the evidence of Constable Rumley to that of Sergeant Pannozzo.
Evidence of Sergeant Pannozzo
[9] On the evening of December 9, 2011, Sergeant Pannozzo, a member of the Peel Regional Police Force, was working as the supervising officer with respect to the "Festive" RIDE program. In that role, he was actively involved in investigating potential impaired drivers.
[10] At approximately 11:20 p.m. that evening Sergeant Pannozzo was making observations of a parking lot connected to a licensed establishment, PK Bar and Grill, located at Dundas Street West and Parkerhill Road, in the City of Mississauga. Shortly after he began doing so, he saw Mr. Evans exit the bar alone, walk to a nearby car, enter that vehicle and then drive off. Sergeant Pannozzo decided to follow him.
[11] Once he began driving, Mr. Evans made a right turn onto Dundas Street West. According to Sergeant Pannozzo, Mr. Evans accelerated rather quickly after entering the roadway, before moving from the curb lane to the passing lane. Shortly thereafter, Mr. Evans made a left turn onto Mason Heights. According to the officer, Mr. Evans did not signal his lane change or his left turn. Once on Mason Heights, Sergeant Pannozzo testified that Mr. Evans was travelling 60 to 65 kilometres per hour in what he believed was either a posted 40 or 50 kilometre per hour zone. Mr. Evans eventually made a right turn onto Stillmeadow Road, again without signalling his turn. At this point, Sergeant Pannozzo testified that he activated his emergency lights in order to stop Mr. Evans. However, the officer testified that Mr. Evans continued on for some distance before making yet another right hand turn onto Cynara Road before finally coming to a stop. The time was approximately 11:26 p.m.
[12] During cross-examination, when presented with a Google map of the relevant area, Sergeant Pannozzo acknowledged that he made an error in his direct evidence (and presumably in his notes) when he testified that Mr. Evans turned right from Mason Heights onto Stillmeadow. Those two streets run parallel to one another and do not intersect. Instead, Mr. Evans turned from Mason Heights onto another street (not named on the Google map) before turning onto Cynara Road and stopping.
[13] Sergeant Pannozzo testified that after he stopped Mr. Evans he approached him. Upon doing so, he immediately noted that Mr. Evans' cheeks were red and flushed and that his eyes were watery. (The driver's side window was apparently down as the officer made these observations.) According to Sergeant Pannozzo, before he had an opportunity to say anything, Mr. Evans looked at him and said: "yes". The officer then asked Mr. Evans where he was coming from, with the latter responding, "the bar". According to Sergeant Pannozzo, Mr. Evans' speech was extremely slurred and he could barely pronounce the word "bar".
[14] At this point Sergeant Pannozzo testified that he told Mr. Evans that he was part of a RIDE spot-check and that he was checking drivers for alcohol consumption. After doing so, he asked Mr. Evans which bar and he responded "PK Creek". According to Sergeant Pannozzo, Mr. Evans could barely pronounce these words.
[15] As he stood by, Sergeant Pannozzo noted that Mr. Evans was attempting to remove his license from his wallet but was experiencing considerable difficulty in doing so (the officer had not yet asked for Mr. Evans' license). Eventually, he abandoned his efforts, at which point, according to Sergeant Pannozzo, Mr. Evans looked up at him and asked the officer: "can I help you?" Once again, Sergeant Pannozzo noted that Mr. Evans speech was very slurred. He also detected a very strong odour of beer coming from Mr. Evans' breath. When asked how much he had to drink that evening, Mr. Evans reportedly replied: "a few beers".
[16] Sergeant Pannozzo responded by asking Mr. Evans to step out of his car and accompany him back to the police cruiser. Mr. Evans exited his vehicle, but soon after doing so he needed to place his hand on his car to balance himself. After the officer and Mr. Evans moved back to the police cruiser, Sergeant Pannozzo noted that Mr. Evans had difficulty standing straight and had to balance himself by placing a hand on the police cruiser. When the officer pointed this out to Mr. Evans, he reportedly responded: "I think I am okay".
[17] At this point, Sergeant Pannozzo decided to place Mr. Evans under arrest for impaired driving. In explaining that decision, he testified that he believed he had reasonable and probable grounds to arrest Mr. Evans for that offence based on the combination of the following factors: the nature of his driving (the sudden acceleration and the failure to signal lane changes and turns); the strong odour of beer on his breath; his slurred speech; and his unsteadiness on his feet. As a result, at 11:29 p.m. Sergeant Pannozzo placed Mr. Evans under arrest for impaired operation of a motor vehicle.
[18] Sergeant Pannozzo testified that following the arrest he made a request for another unit to attend at the scene and assume responsibility for the arrest. He did so because he needed to return to his supervisory duties. Sergeant Pannozzo testified that while he waited for the second unit, he searched Mr. Evans and placed him in the rear of his police cruiser; Mr. Evans was cooperative during these interactions.
[19] Sergeant Pannozzo testified that in response to his radio call for another unit, Constable Rumley arrived on scene at 11:30 p.m. During his evidence, Sergeant Pannozzo explained that Constable Rumley must have been in the area, given how quickly she responded to his location. Sergeant Pannozzo testified that after Constable Rumley arrived, he radioed for a tow truck and made inquiries to determine to which police division Mr. Evans should be taken for breath testing.
[20] Following the arrival of Constable Rumley, Sergeant Pannozzo testified that he turned Mr. Evans over to her so that she could continue the arrest. The two officers moved Mr. Evans together to Constable Rumley's cruiser, where Constable Rumley handcuffed Mr. Evans before securing him in the rear of her cruiser. After that, Sergeant Pannozzo testified that he apprised Constable Rumley of his grounds for arresting Mr. Evans, so that she could continue the arrest in his place.
[21] Sergeant Pannozzo candidly acknowledged that he never apprised Mr. Evans of his section 10(b) Charter rights. It would also appear that he did not read Mr. Evans the approved instrument breath demand.
Evidence of Constable Rumley
[22] Constable Rumley is a member of the Peel Regional Police Force. She was working on the evening of December 9, 2011, assisting with the RIDE spot-check program. In response to a radio call, she attended at the location of Mr. Evans' arrest on Cynara Road. Constable Rumley testified that she arrived at that location at 11:39 p.m. (nine-minutes later than was described by Sergeant Pannozzo in his evidence).
[23] Following her arrival, Constable Rumley testified that Sergeant Pannozzo briefed her regarding his grounds for arresting Mr. Evans. After that, the two officers proceeded to escort Mr. Evans from Sergeant Pannozzo's cruiser to the rear of Constable Rumley's police vehicle. As they did so, Constable Rumley noted that Mr. Evans was very unsteady on his feet.
[24] According to Constable Rumley, once Mr. Evans was in the rear of her cruiser she began informing him of his rights to counsel and also provided him with the common law caution regarding his right to silence. She testified to beginning this process at 11:43 p.m. At this point, when asked if he wanted to contact a lawyer, Mr. Evans indicated that he did not wish to do so. Following that, at 11:46 p.m., Constable Rumley testified that she proceeded to ask Mr. Evans how much he had to drink and where he had been drinking. Mr. Evans told the officer that he had gone to "PK Bar" at 6:00 p.m. and admitted to consuming five beers. Immediately following this response, still at 11:46 p.m., Constable Rumley read the formal approved instrument breath demand to Mr. Evans.
[25] Constable Rumley testified that she left the scene with Mr. Evans at 11:49 p.m. and that she would have taken the most direct route from there to 12 Division, where they arrived at 12 midnight. Following their arrival, Constable Rumley and Mr. Evans had to wait on the qualified (breath) technician, as he was apparently busy in the breath room conducting testing on another individual.
[26] While Constable Rumley and Mr. Evans waited, she proceeded to ask Mr. Evans a series of questions. During this questioning, Mr. Evans admitted to drinking five "pints" of beer at PK Creek Bar. He reported that he began drinking at 6:30 p.m. and took his last drink at 11:20 p.m.
[27] At 12:29 a.m. Constable Rumley turned custody of Mr. Evans over to the qualified (breath) technician, Constable Holmes. Throughout the time when Mr. Evans and Constable Holmes were inside the breath room, Constable Rumley was also present. The events inside the breath room were videotaped in their entirety; that recording was made an exhibit at trial. The breath testing was completed at 1:14 a.m.
[28] According to Constable Rumley, after the completion of the breath testing, Mr. Evans made some additional comments to her regarding his alcohol consumption that evening. He reportedly said: "I had six pints for sure, two Coors Light and four Steam Whistle."
[29] Constable Rumley's final dealings with Mr. Evans took place at 1:30 a.m., when she served various documents upon him, including a copy of the Certificate of a Qualified Technician and Notice of Intention to Produce that certificate at his trial. (Both of these documents were made exhibits at the trial.)
[30] Finally, Constable Rumley testified that based on her dealing with Mr. Evans she formed the opinion that his ability to operate a motor vehicle was impaired by alcohol; she maintained that her opinion in that regard never changed during her dealings with Mr. Evans.
Evidence of Constable Holmes
[31] Constable Holmes is the qualified (breath) technician who carried out the breath testing procedure with respect to Mr. Evans. The video recording from the breath room, which became an exhibit at trial, captured the entirety of his dealings with Mr. Evans.
[32] At 12:30 a.m., before commencing the breath testing procedures, Constable Holmes apprised Mr. Evans of his right to counsel. When he was asked if he wanted to speak to a lawyer, Mr. Evans again responded "no".
[33] Two samples of the defendant's breath were seized and analyzed by means of an approved instrument. The first sample was collected at 12:38 a.m. and registered a reading of 190 milligrams of alcohol in 100 millilitres of blood. The second sample, taken at 1:00 a.m., when analyzed, revealed a blood alcohol concentration of 180 milligrams of alcohol in 100 millilitres of blood. Beyond the recording from the breath room itself, these results were also established by means of the Certificate of a Qualified Technician signed by Constable Holmes that was filed as an exhibit at the trial.
[34] Constable Holmes also testified that based on his dealings with Mr. Evans, he formed the opinion that Mr. Evans' ability to operate a motor was impaired by alcohol. In characterizing the extent of those affects, he testified that they were "noticeable to obvious."
[35] The recording from inside the breath room clearly corroborates the opinions formed by both Constables Rumley and Holmes, in terms of Mr. Evans level of impairment by alcohol. At times during his interactions with Constable Holmes inside the breath room, Mr. Evans' speech is noticeably slurred. When asked to rank himself on a ten-point scale in terms of the impact of alcohol upon him, with "0" being stone cold sober, and "10" being so drunk that he could not walk or talk, Mr. Evans ranked himself as 3 out of 10.
[36] Ultimately, Mr. Evans also agreed to perform a number of physical coordination tests while inside the breath room. Like everything that transpired inside the breath room, these tests were video recorded. It is clear from watching the recording that Mr. Evans' physical coordination on the evening in question was significantly impacted by his alcohol consumption.
III. Findings
[37] A key factual question that I must decide before I can address a number of the legal issues raised in this case relates to the timing of Mr. Evans' arrest relative to him being apprised of his rights to counsel and read the approved instrument breath demand. There is a discrepancy as between the evidence of Sergeant Pannozzo and Constable Rumley that bears upon this question.
[38] As noted above, Sergeant Pannozzo testified that he pulled Mr. Evans over at 11:26 p.m., arrested him at 11:29 p.m., and then called for another officer to attend to take over the arrest. He testified that Constable Rumley arrived on scene at 11:30 p.m.
[39] In contrast, Constable Rumley testified that in response to a radio call she attended at the location of Mr. Evans' arrest and arrived there at 11:39 p.m. After taking physical custody of Mr. Evans and placing him in the rear of her cruiser, she began to give him his rights to counsel at 11:43 p.m. and, when that process was completed, read him the formal approved instrument demand at 11:46 p.m.
[40] The Crown submits that the most likely explanation for the discrepancy as between the evidence of the two officers regarding how soon after Mr. Evans' arrest Constable Rumley arrived on scene is that the wristwatch of one of the two officers must have been set incorrectly. In theory, at least, that could explain the discrepancy. However, in my view, there is simply no evidence from which to draw such an inference and doing so would involve unsubstantiated speculation.
[41] In terms of drawing a reasonable inference based on evidence, I think the far more likely explanation for the discrepancy is that Sergeant Pannozzo made an error in his notes when recording the time of Constable Rumley's arrival at the scene of the arrest. I come to that conclusion based on the combination of the following considerations:
As he gave his evidence, Sergeant Pannozzo relied heavily on his notes for the purpose of refreshing his memory. When he testified that a second unit arrived on scene at 11:30 p.m., a minute after he called for it, the manner in which he gave that answer struck me as though he himself was surprised by it. As he testified, he explained it in the only way he could; by noting that the second unit must have been very close by. To me, however, he seemed to be less than convinced by his own answer.
It also seems improbable to me that on a Friday night during the holiday season that back up would arrive only a minute after being called; in contrast, a ten minute wait seems far more likely, especially remembering the time of year, the day of the week and the time of night.
Further, Sergeant Pannozzo made other errors in his evidence, which I imagine, given the manner in which he testified, were reflective of errors in his notes. For example, he testified that Mr. Evans turned from Mason Heights onto Stillmeadow. Those two streets do not intersect and are blocks away from one another. Although Sergeant Pannozzo acknowledged the error during cross-examination, he was unable to shed light on the name of the actual street Mr. Evans turned onto from Mason Heights. The name of that street was not marked on the map produced by Mr. Evans and Sergeant Pannozzo simply could not remember the street name.
I also note that Sergeant Pannozzo was testifying about events that had taken place over three years earlier, so I am doubtful about the extent to which his independent recollection can be relied upon to catch an inadvertent error in his notebook.
Finally, Constable Rumley impressed me as the stronger witness, in terms of having a better independent recollection of the relevant events. For example, unlike Sergeant Pannozzo, she was able to identity the street that Mr. Evans' would have turned onto from Mason Heights in order to make his way onto Cynara Road before being stopped by Sergeant Pannozzo.
[42] I therefore conclude that Sergeant Pannozzo was simply in error when he testified that Constable Rumley arrived on scene at 11:30 p.m. In my view, he made a mistake in his notes when he noted the time of Constable Rumley's arrival, a mistake he repeated during his testimony and that he lacked the independent recollection to correct during his evidence. I therefore prefer Constable Rumley's testimony on this point. I accept her evidence that she arrived at the location of Mr. Evans' arrest at 11:39 p.m.
[43] Based on the totality of the evidence I heard, I am satisfied on a balance of probabilities that Mr. Evans was arrested at 11:29 p.m. Further, that because he was only planning on holding Mr. Evans until a back up officer arrived, Sergeant Pannozzo decided to defer the reading of the rights to counsel and the formal approved instrument demand to the officer who would ultimately take over the arrest and transport Mr. Evans back to the police division. As a result, Mr. Evans was only apprised of his rights to counsel fourteen minutes after he was arrested. Further, the formal approved instrument demand was only read to Mr. Evans some seventeen minutes after Sergeant Pannozzo formed his reasonable and probable grounds that Mr. Evans was driving while impaired and arrested him for that offence.
IV. Law and Analysis
[44] The facts and findings detailed above give rise to a number of Charter issues, each of which will be addressed in turn.
A. Section 10(a) and 10(b) of the Charter at the Roadside
[45] Section 10 of the Charter guarantees certain rights "on arrest or detention", including: "(a) to be informed promptly of the reasons therefor" and "(b) to retain and instruct counsel without delay and to be informed of that right." It is well established that a driver who stops his or her vehicle when signalled to do so by a police officer is "detained".
[46] In Orbanski & Elias, the Supreme Court of Canada held that the right to counsel does not apply at the roadside when the police are conducting road-safety inquiries, for example, questioning a driver about alcohol consumption or requesting that the driver participate in sobriety tests. According to the Court, the right to counsel is implicitly overridden in such circumstances by the "operating requirements" of the "interlocking scheme of federal and provincial legislation" governing motor vehicle travel. In other words, the right is overridden because of the impracticality of implementing it at the roadside.
[47] The override of the right to counsel at the roadside during detentions motivated by traffic safety concerns has its limits. In upholding the override as a reasonable limit under section 1 of the Charter, the Supreme Court in Orbanski & Elias noted that any responses given by the motorist to police questions or the results of any roadside sobriety tests can only be used as an investigative tool to confirm or refute the officer's suspicion that the driver might be impaired; it cannot be used as direct evidence to incriminate the driver. Further, as the Supreme Court explained in Orbanski & Elias, "the limitation on the right to counsel has strict temporal limits — there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel." Therefore, if the police investigation of a suspected impaired driver culminates in an arrest, the justification for the override falls away and the person arrested must then be informed of his or her right to counsel.
[48] It is important to note that there is no comparable override at the roadside of the right found in section 10(a) of the Charter. This is because there is simply nothing impractical about the police telling a driver whom they stop why they have been detained. As Charron J. observed on behalf of the Court in Orbanski & Elias: "I suspect every motorist would fully expect 'to be informed promptly of the reasons' why he or she is being stopped."
[49] Section 10(a) of the Charter requires police to tell those who they detain in "clear and simple language" of the reason(s) why. In Evans, the Supreme Court explained that what section 10(a) requires of the police will depend on the circumstances bearing in mind the underlying purpose of the guarantee. As McLachlin, J., as she then was, explained:
When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).
The guarantee would seem to serve slightly different purposes for those who have been detained rather than arrested. For many, being detained by police will occasion a fair bit of anxiety; compliance with the guarantee therefore goes some distance towards lessening the psychological impact of detention. In addition, depending on the circumstances, the person detained by the police may be in a position of legal jeopardy. In such situations, knowing why one has been detained will undoubtedly assist the affected individual to make a more informed decision in terms of how to respond. For example, a detained motorist who knows that they are suspected of impaired driving may decide to refrain from making an incriminating admission or participating in physical sobriety tests.
[50] With respect to when a detained or arrested individual must be apprised of the information to which they are entitled under sections 10(a) and 10(b), the law is clear and well established.
[51] Section 10(a) provides that the person detained must be informed "promptly" of the reason(s) for their detention. According to the Court of Appeal for Ontario, "promptly" properly understood in the context of section 10(a), means "immediately".
[52] The temporal language contained in section 10(b) of the Charter is somewhat different but to the same effect. The guarantee provides that "on arrest or detention" an individual has the right to retain and instruct counsel and to be informed of that right "without delay". The Supreme Court of Canada has strictly interpreted this language. It has instructed that the police must apprise a person of their right to retain and instruct counsel immediately upon detention or arrest. The only permissible delay, the Supreme Court has explained, is where the police need time to obtain control over a potentially dangerous or volatile situation out of concern for police or public safety.
[53] With the rules governing the operation of sections 10(a) and 10(b) at the roadside now set out, I turn to a consideration of the circumstances of this case.
B. Was section 10(a) of the Charter violated?
[54] Sergeant Pannozzo testified that before he had an opportunity to say anything to Mr. Evans after approaching his car, Mr. Evans looked up at him and said "yes". At this point, in order to comply with section 10(a) of the Charter, Sergeant Pannozzo should have told Mr. Evans: "I stopped you because I think you may have been drinking and I want to make sure you are okay to drive" or words to that effect. Instead, he proceeded to question Mr. Evans about where he was coming from. This led Mr. Evans to confirm that he was coming from "the bar," a response that Sergeant Pannozzo testified also served to reveal that Mr. Evans' speech was extremely slurred.
[55] It was only after receiving Mr. Evans' incriminating response that Sergeant Pannozzo told him that he was part of a RIDE spot-check and that he was checking drivers for alcohol consumption. Putting aside the failure to tell Mr. Evans this immediately upon approaching him, I also think this comment, in the circumstances, fell short of apprising Mr. Evans of why he was being detained. It was clear from Sergeant Pannozzo's evidence that given that he had seen Mr. Evans drive off in his car after leaving a bar, combined with the driving he had observed (i.e. Mr. Evans' sudden acceleration, his failure to signal lane changes or turns, and the fact that he seemed to be speeding), that he actually suspected that Mr. Evans had been drinking and might be an impaired driver.
[56] Given all of this, I am of the view that Sergeant Pannozzo violated Mr. Evans' section 10(a) Charter right. In coming to this conclusion, I have carefully considered but ultimately reject the Crown's argument that because of his condition and the circumstances it would have been obvious to Mr. Evans as to why he was being stopped and hence his state of awareness precluded the need for Sergeant Pannozzo to inform him of the reasons.
[57] In making this argument, the Crown relied upon Kumarasamy. In that decision, Dambrot J., sitting as a summary conviction appeal court, overturned the decision of the trial judge who had found a violation of section 10(a). In Kumarasamy, a police officer had stopped a driver who was observed to be driving erratically. After stopping the vehicle, the officer did not tell the driver why he had stopped him. The officer explained that he had not done so because, "he did not want to tip him off, with the possible effect of panicking him and causing him to drive away."
[58] In concluding that there was no section 10(a) violation in Kumarasamy, Dambrot J. held that if it would be apparent to the person why they were being detained from the context and circumstances, a police officer's failure to expressly apprise the person of the reason(s) would not occasion a breach. In coming to that conclusion, Dambrot J. relied upon two separate decisions issued by individual judges of the Alberta Court of Appeal (Carrier and Lund) each of which dismissed applications seeking leave to appeal against the decisions of summary conviction appeal courts. He also noted that it appeared as though the Court of Appeal for Ontario in Nguyen had adopted this same approach. In so concluding, Dambrot J. relied exclusively upon the italicized language found in the following excerpt from the judgment in Nguyen:
[16] The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] (U.K. H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed.
[59] With the greatest of respect to Dembrot J., I do not believe the excerpt from Nguyen that he relies upon can be fairly read as the Court of Appeal for Ontario endorsing the approach taken in Carrier and Lund. Rather, in the highlighted passage the Court seems to be doing little more than describing the common law as it stood long before the Charter. The excerpt is not meant to be an exposition of the current law governing section 10(a) of the Charter.
[60] On my reading of the Supreme Court of Canada's jurisprudence, section 10(a) imposes a positive informational duty on the police. In Evans, the Supreme Court referred to the "right to be promptly advised of the reasons for one's detention". It emphasized the need for a functional rather than a formalistic approach, making clear that the: "question is whether what the accused was told, viewed reasonably in all of the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to understand his right to counsel under s. 10(b)." In Evans, the Supreme Court of Canada did not find a violation of section 10(a) given that the appellant understood his jeopardy because "the police informed the appellant that he was a suspect in the killings shortly after their suspicion of him formed".
[61] Similarly, I find it impossible to reconcile the holding in Kumarasamy with the Supreme Court's direction in Mann that, "[a]t a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention." If the holding in Kumarasamy represents a correct statement of the law governing section 10(a) of the Charter, one is left to wonder why the Court would not have qualified this statement in Mann by adding, "unless it would be obvious to the individual why they were being detained"? The same is true of the comment in Orbanski & Elias that, "every motorist would fully expect 'to be informed promptly of the reasons' why he or she is being stopped." If the law is as Dambrot J. asserts in Kumarasamy, it again begs the question why Charron J. would not have similarly qualified this statement?
[62] In my view, the notion that if a suspect can be taken to know why they are being detained then the police may be relieved of their informational obligations under section 10(a) was clearly put to rest by the Supreme Court of Canada in Borden, long before both Mann and Orbanski & Elias. In that case, the accused had been arrested for one sexual assault but was also suspected by police of a second sexual assault. The police failed to inform the accused that he was also a suspect in the second sexual assault. The accused agreed to provide police with a blood sample that was ultimately used to link him to the second sexual assault through DNA testing. Beyond finding a violation of section 8 of the Charter (because the accused's consent was not informed and therefore invalid) the Court also held that the police violated sections 10(a) and 10(b) by failing to inform the accused that he was also suspected of, and being detained in relation to, the second sexual assault.
[63] In finding that the accused's sections 8, 10(a) and 10(b) rights were violated in Borden, the Supreme Court specifically rejected the Crown's argument that because the accused had perpetrated the second sexual assault, he would have known his blood sample could have been used to link him to that offence and therefore his consent to the giving of his blood would have been informed. In rejecting this argument, Iacobucci J., for the majority, noted:
As my colleague Sopinka J. pointed out at the hearing of this appeal, the logical extension of this argument would be that the protections afforded by the Charter no longer apply whenever the person arrested is guilty of the offence for which he or she has been detained. Also inherent in this line of argument is the unfairness of relying on the results of evidence whose admissibility is in dispute to support the contention that the respondent's rights were not violated.
In my view, this passage makes clear that the Supreme Court of Canada has rejected the notion that because an individual has engaged in a particular form of wrongdoing (i.e. speeding, bad driving, etc.) they would necessarily know why they were being detained and therefore the police would be relieved of their informational duties under section 10(a).
[64] I am of course required to follow decisions of superior court judges sitting as summary conviction appeal courts in this province. However, with the greatest of respect to Dambrot J., I believe that he has misinterpreted the effect of the Court of Appeal's decision in Nguyen and the Supreme Court of Canada's decisions in Evans, Mann and Orbanski & Elias. In addition, he appears not to have averted to the implications of the quoted excerpt from the Supreme Court's decision in Borden. I have therefore concluded that the decision in Kumarasamy is per incuriam. I am accordingly not bound to follow it. Instead, I have followed the section 10(a) jurisprudence as set down by the Supreme Court of Canada and the Court of Appeal for Ontario; which has led me to conclude that Mr. Evans' section 10(a) Charter right was violated.
[65] In the event I am wrong in not following Kumarasamy, I think it prudent to remark on where my analysis would have led me had I felt bound by that decision. Although it would be rather obvious to any objective observer why Sergeant Pannozzo pulled Mr. Evans over on the evening of December 9, 2011 – remembering that Mr. Evans had just left a bar, it was late at night, he was driving aggressively, he failed to signal his lane changes and turns, and he was speeding – given how intoxicated Mr. Evans was and his apparent difficulty in navigating his interaction with Sergeant Pannozzo at the roadside, I think it unlikely that Mr. Evans would have necessarily been able to connect the dots. Therefore, even applying Kumarasamy, I am satisfied that a section 10(a) violation resulted when Sergeant Pannozzo failed to tell Mr. Evans why he had detained him when he first approached his vehicle and began speaking to him at the roadside.
C. Was section 10(b) of the Charter violated?
[66] Although section 10(b) of the Charter was not operative prior to Mr. Evans' arrest, that override no longer applied once he was arrested at 11:29 p.m. Unfortunately, as Sergeant Pannozzo candidly acknowledged during his evidence, he did not apprise Mr. Evans of his right to counsel after arresting him. Instead, it was Constable Rumley who did so, but only beginning at 11:43 p.m. Sergeant Pannozzo described Mr. Evans as cooperative throughout his dealings with him. As a result, there was simply nothing about the circumstances to justify the fourteen-minute delay in apprising Mr. Evans of his right to counsel. The delay therefore occasioned a violation of Mr. Evans' section 10(b) Charter rights.
D. Was section 8 of the Charter violated?
[67] A warrantless search or seizure is presumed to violate section 8 of the Charter. To displace that presumption the Crown bears the burden of establishing, on a balance of probabilities, that a search or seizure was authorized by law, the law itself is reasonable, and that it was carried out in a reasonable manner. These general principles have equal application to the taking of breath samples in response to a breath demand, which amounts to a "seizure" for section 8 Charter purposes.
[68] The effect of Mr. Evans' serving and filing a Notice of Application alleging a breach of his section 8 Charter right was made clear to both him and the Crown at the outset of the trial. As the court explained to the parties, in accordance with Haas, his application served to place the burden on the Crown to establish, on a balance of probabilities, that the lawful preconditions for the seizure of Mr. Evans' breath samples were satisfied.
[69] In my view, in this case, Sergeant Pannozzo's decision to defer the reading of the approved instrument demand to the officer that he summoned to the scene to assume responsibility for the arrest also occasioned a violation of section 8 of the Charter. Under section 254(3) of the Criminal Code, a demand for a breath sample will be a lawful demand only if it is made "as soon as practicable" after the police officer has determined that there are reasonable and probable grounds to believe that a person has committed either the offence of impaired driving or the offence of a operating a motor vehicle with excess blood alcohol. The Court of Appeal has explained that, "the words 'as soon as practicable' have been interpreted to mean 'within a reasonably prompt time', not 'as soon as possible'".
[70] To be clear, I do not think there was anything unreasonable in Sergeant Pannozzo's decision to remain on the road and arrange for a second officer to attend the scene to transport Mr. Evans to the police division for the purposes of breath testing. As a result, the resulting delay in administering the breath testing occasioned by that decision would not foreclose the Crown from relying on the presumption of identity found in subsection 258(1)(c) of the Criminal Code. That provision includes an analogous temporal component to that found in section 254(3); requiring that breath samples be taken as "soon as practicable" after the time when the offence was alleged to have been committed". The key in determining whether or not that requirement was respected is whether or not the police acted reasonably. Given that Sergeant Pannozzo was the supervising officer in charge of the RIDE program that evening, the decision to delegate to a second officer the transportation of Mr. Evans to the police division for the purposes of carrying out breath testing made eminently good sense and was not at all unreasonable in the circumstances.
[71] Although the language of section 254(3) and 258(1)(c) is analogous, I think that the considerations that govern the obligations under each provision are different. Quite simply, it takes little time at all to read the person arrested for impaired driving the approved instrument breath demand. Although it is easy to imagine circumstances in which it would be reasonably necessary to delay the reading of that demand, I do not think there was any such justification in this case. Consequently, I am of the view that the seventeen minute delay between Mr. Evans' arrest (at 11:29 p.m.) and the reading of the breath demand (at 11:46 p.m.) ran afoul of the "as soon as practicable" requirement found in section 254(3) of the Code. In other words, in the circumstances of this case, the demand was not made within a reasonably prompt time of Sergeant Pannozzo forming his grounds. As a result, the breath demand was unlawful and the resulting seizure of Mr. Evans' breath samples pursuant to that demand was unreasonable and in contravention of his right to be secure against unreasonable seizure guaranteed by section 8 of the Charter.
E. Should the evidence be excluded under section 24(2) of the Charter?
[72] I turn next to consider the potential remedy for the Charter violations that have been established in this case. Any evidence that was "obtained in a manner" that violated a right guaranteed by the Charter is potentially subject to exclusion under section 24(2) of the Charter. In my view, all of the evidence acquired after the violation of Mr. Evans' section 10(a) right was linked closely enough – both in temporal and causal terms – to that violation, as well as the subsequent breaches of both sections 10(b) and 8, to be capable of exclusion under section 24(2). This includes the evidence of the various officers who dealt with Mr. Evans regarding their observations of him, any statements made by Mr. Evans, and the breath testing results.
[73] Following the analytical framework supplied by the Supreme Court in Grant, I am required to assess and balance the effect of admitting or excluding the evidence on society's confidence in the justice system, having regard to: 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on Mr. Evans' Charter protected interests; and 3) society's interest in the adjudication of the case on its merits.
[74] In the end, I must balance my assessment of each of these considerations in order to determine whether, considering all of the circumstances, the admission or the exclusion of the evidence would bring the administration of justice into disrepute.
(i) Seriousness of the Charter infringing state conduct
[75] I begin by assessing the seriousness of the Charter infringing state conduct. I have concluded that there are a number of aggravating features here that cause me to place the violations that took place in this case on the more serious end of the spectrum.
[76] To begin with, there is the number of breaches; I think the cumulative effect of violating three distinct Charter rights makes the state misconduct most serious.
[77] To be sure, I do not think that any of the breaches were deliberate. Nevertheless, I am also troubled by the fact that a police sergeant, someone with seventeen years of experience, who was actually the supervising officer with respect to the RIDE program that night, was so unaware of such basic and well-established constitutional obligations. In my view, this potentially points to a larger systemic issue in terms of the legal training provided to members of the Peel Regional Police Service. This may relieve Sergeant Pannozzo of personal responsibility, but it also makes the resulting violations even more serious. As the Supreme Court made clear in Grant, "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". This is because the police "are rightly expected to know what the law is". As McLachlin C.J.C. noted in Harrison, courts should dissociate themselves from police activity, "where the police knew (or should have known) that their conduct was not Charter-compliant."
[78] Given all of this, placing the conduct in this case along a spectrum, with the minor and technical at the one end, and the wilful Charter violation on the other, I would place the breaches in this case on the more serious end of the spectrum; albeit just shy of where one might place cases involving deliberate violations.
(ii) Impact on the Charter protected interests of the accused
[79] I am next required to consider the impact of the violations on Mr. Evans' constitutionally protected interests. "The more serious the impact on the accused's protected interests," the majority in Grant noted, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute."
[80] In this case, the breach of Mr. Evans' section 10(a) Charter right was closely connected to the acquisition of self-incriminating evidence that was then used to justify his arrest, the resulting breath demand and, ultimately, the incriminating breath samples. Viewed in this light, the impact of the breach would seem to have been significant. However, given Mr. Evans' level of impairment, I am inclined to think that the roadside interaction and the entire investigation would have likely unfolded much as it did in this case even if he had been immediately told why he was being detained. In noting this, I am of course mindful of what the Supreme Court of Canada has said about the role of discoverability in assessing the impact of a Charter breach on the constitutionally protected interests of an accused person.
[81] In Côté, the Supreme Court made clear that discoverability, "remains a relevant factor under the current s. 24(2) analysis." If despite the violation of the Charter the same evidence would likely have been acquired, this weights in favour of admissibility rather than exclusion. Nevertheless, in Côté the Court also sounded a cautionary note about the role of discoverability under section 24(2). Cromwell J. explained:
While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant, where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry.
[82] In this case, I think it rather likely that much of the evidence relied upon by the Crown to prove its case against Mr. Evans would inevitably have been acquired even if the police had scrupulously respected the constitutional rights guaranteed to him by sections 10(a), 10(b) and 8 of the Charter. After all, when he was eventually apprised on two separate occasions of his right to counsel Mr. Evans declined the opportunity to call a lawyer on both occasions; there is no reason to think he would have behaved any differently had he been informed of that right immediately upon his arrest. Further, the delay in reading the breath demand did not alter the fact that the police had more than sufficient grounds to make it. As a result, Charter compliance would have posed no impediment to acquiring Mr. Evans' breath samples. In my view, all of this serves to substantially lessen the impact of the Charter violations on Mr. Evans constitutionally protected interests. Be that as it may, it cannot be said that the violations had absolutely no impact.
[83] As a result of the breach of section 10(a), Mr. Evans was required to navigate his roadside interaction with Sergeant Pannozzo without knowing the extent of his jeopardy. In the process, he furnished self-incriminating evidence that was then used to justify his arrest and the subsequent breath demand. Nor was the impact of the breaches of sections 10(b) and 8 entirely negligible. Because of these breaches, Mr. Evans spent fourteen minutes under arrest, confined in the backseat of a police cruiser, without being told that he had the right to retain and instruct counsel. It was several more minutes before the breath demand was read to him and he was therefore made aware of the breath testing process that awaited him. These were things that Mr. Evans was entitled to know and to contemplate while he waited on the arrival of Constable Rumley. As a result, in my view, the breaches did have some impact on Mr. Evans constitutionally protected interests.
(iii) Society's Interest in an adjudication on the merits
[84] I must next consider society's interest in having this case adjudicated on its merits. In that regard, I am required to consider whether truth seeking would be better served by the admission or the exclusion of the evidence. This factor strongly favours admission of the evidence in this case.
[85] To begin with, the evidence is extremely reliable. The results of the breath testing authoritatively establish that Mr. Evans' blood alcohol concentration was well in excess of the legal limit. In addition, the video from the breath room provides compelling original evidence demonstrating that Mr. Evans was rather impaired on the evening in question.
[86] Further, the exclusion of the evidence would prove fatal to the Crown's case and would mean that a very drunk driver would escape responsibility for his extremely dangerous criminal behaviour.
(iv) Conclusion regarding section 24(2)
[87] In the end, after considering the three lines of inquiry contemplated by the Supreme Court, which reflect all the circumstances of the case, in deciding whether or not to admit or to exclude the evidence, I am to balance the interests of truth seeking with the need to maintain the long-term integrity of the administration of justice.
[88] In my view, this is a very close case. However, after carefully considering the serious nature of the violations, bearing in mind their cumulative nature and the systemic problem that they seem to suggest, despite the less than significant impact on Mr. Evans' constitutionally protected interests, and remembering the societal interest in an adjudication on the merits, I believe that exclusion of the evidence would better serve the long term repute of the administration of justice.
[89] Accordingly, pursuant to section 24(2) of the Charter, all of the evidence proffered by the Crown relating to the observations made by the three witnesses after the violation of Mr. Evans' section 10(a) right is ordered excluded. This includes most of the evidence of Sergeant Pannozzo, and all of the evidence of Constables Rumley and Holmes, as well as the video from the breath room and the breath testing results.
V. Conclusion
[90] Given the order made pursuant to section 24(2) of the Charter, there is no evidence before the court to substantiate the charge of operating a motor vehicle with excess blood alcohol and that charge is therefore dismissed.
[91] With respect to the charge of impaired driving, the evidence that remains is Sergeant Pannozzo's observations of Mr. Evans leaving a bar late on a Friday night, accelerating quickly once he entered onto the roadway, failing to signal a lane change and some turns, speeding, and having red flush cheeks and watery eyes. Although this collection of evidence would be sufficient to justify the making of an approved screening device demand, it falls far short of proving a charge of impaired driving beyond a reasonable doubt. Accordingly, that charge is also dismissed.
Released: June 1, 2015
Justice James Stribopoulos
