Court File and Parties

Date: 2015-12-10

Court File No.: Brampton 13-16692

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Michael Medeiros

Before: Justice P.A. Schreck

Heard on: April 14, November 12, 2015

Reasons for Judgment

Counsel:

A. Fedak-Tarnopolsky – counsel for the Crown

R. Mwangi – counsel for the defendant, Michael Medeiros

SCHRECK J.:

[1] Initial Incident

When a police car came up behind Michael Medeiros driving in a van with several friends, he pulled into an empty parking lot, got out of the driver's seat and into the back of the van. The police officer, who had followed him into the lot, directed him to exit the van and subjected him to a pat-down search. The officer then demanded that Mr. Medeiros provide a breath sample into an approved screening device ("ASD"). He refused and was arrested for refusing to comply with the demand, contrary to s. 254(5) of the Criminal Code, as well as obstructing a peace officer, contrary to s. 129(a).[1]

[2] Charter Challenges

Mr. Medeiros submits that the officer did not have the grounds to make a valid ASD demand. He also submits that the officer had no basis to detain or search him, failed to advise him of the reasons for his detention and failed to advise him of his right to counsel in a timely fashion, thereby violating his s. 9, 8, 10(a) and 10(b) Charter rights. He seeks, as a remedy, the exclusion of the evidence of his refusal.

[3] Court's Preliminary Finding

For the reasons that follow, I am satisfied that the officer had the requisite grounds to make the ASD demand and I am not persuaded that there were breaches of Mr. Medeiros's s. 9 and 10(a) Charter rights. While his s. 8 and 10(b) rights were breached, I am not persuaded that the evidence should be excluded and find Mr. Medeiros guilty.

I. EVIDENCE

A. The Initial Detention and Search

[4] In the early morning hours of December 10, 2013, Cst. Garth Reid of the Peel Regional Police was driving southbound on Kennedy Road when he noticed a van in front of him in the passing lane abruptly turn left into the parking lot of a commercial establishment. Because the van turned from the passing lane rather than the left lane and because the establishment appeared to be closed, Cst. Reid decided to follow it into the parking lot. He observed the van stop in the lot, which was otherwise empty. Cst. Reid stopped his police car such that it was perpendicular to the side of the van. He then saw an individual, later identified as the Defendant, Michael Medeiros, exit the driver's seat. Mr. Medeiros briefly made eye contact with Cst. Reid. He then walked to the rear sliding door of the van, opened it, and climbed in, apparently on top of a passenger sitting there. He attempted to close the door behind him but was unable to do so. At this point, at 1:07 a.m., Cst. Reid approached Mr. Medeiros and directed him to exit the vehicle. Cst. Reid agreed that this was an investigative detention.

[5] When Cst. Reid approached the vehicle, he smelled alcohol but at that point could not tell whether it emanated from Mr. Medeiros or elsewhere in the vehicle. He directed Mr. Medeiros to walk over to the police cruiser, where he patted him down. According to Cst. Reid, this was because of concerns he had for his safety based on the fact that he was alone and the other vehicle had four occupants, including Mr. Medeiros.

B. The ASD Demand

[6] While patting Mr. Medeiros down, Cst. Reid again noticed the odour of alcohol. Based on this, he formed a suspicion that Mr. Medeiros had alcohol in his body. He consequently made a demand at 1:09 a.m. that Mr. Medeiros provide a breath sample into an ASD. This was the first time he advised Mr. Medeiros of the reason for his detention.

[7] In response to the ASD demand, Mr. Medeiros replied "No, I wasn't driving". Cst. Reid repeated the demand and explained to Mr. Medeiros that refusing to comply constituted a criminal offence. Mr. Medeiros did not respond. Cst. Reid then read the demand two more times. Mr. Medeiros again said that he had not been driving and that he would not provide a sample. Cst. Reid said "I saw you driving" and again explained that it was a criminal offence to refuse to comply with the demand. At this point, Mr. Medeiros told Cst. Reid that his friend, Peter, had been driving.

C. The Arrests

[8] Cst. Reid then approached the vehicle and spoke to a person who identified himself as Peter. He denied that he had been driving. At 1:14 a.m., Cst. Reid returned to Mr. Medeiros and advised him that he was under arrest for obstructing a peace officer.

[9] After arresting Mr. Medeiros for the obstruction, Cst. Reid made another ASD demand. Mr. Medeiros again replied that he would not provide a sample. Cst. Reid then asked Mr. Medeiros whether there was anything he could do or say that would result in him providing a sample. Mr. Medeiros replied that there was not. At 1:15 a.m., Cst. Reid placed Mr. Medeiros under arrest for refusing to comply with the ASD demand.

[10] At this point, Cst. Reid searched Mr. Medeiros again between 1:15 and 1:19 a.m. He explained that the earlier search had been for "officer safety" and consisted only of a search over the clothing for weapons. The second search was a search incident to arrest for the refusal charge and involved a search of Mr. Medeiros's pockets. Nothing was found.

D. Right to Counsel

[11] At 1:19 a.m, Cst. Reid advised Mr. Medeiros of his right to counsel for the first time. Mr. Medeiros replied that he did wish to speak to a lawyer. When asked if he wanted to call a specific lawyer, Mr. Medeiros replied: "Richard. I don't know if that is his first or last name. He is probably sleeping, I can call him tomorrow."

[12] Cst. Reid testified that he was aware that he was obliged to provide a person under investigative detention with his right to counsel. It was his belief that he was to do so "as soon as practicable" after his safety concerns had been addressed.

[13] At 1:35 a.m., Mr. Medeiros was provided with an appearance notice and released.

II. THE ISSUES

[14] Counsel for Mr. Medeiros has conceded that the evidence establishes that Mr. Medeiros refused to provide a breath sample and that he had no lawful excuse for doing so. However, he has advanced two arguments as to why Mr. Medeiros should not be convicted. First, he submits that there was no valid demand because Cst. Reid did not have a reasonable suspicion that Mr. Medeiros had alcohol in his body, as required by s. 254(2) of the Criminal Code. Second, he submits that Mr. Medeiros's ss. 8, 9, 10(a) and 10(b) Charter rights were infringed and, as a result, that the evidence of the refusal ought to be excluded pursuant to s. 24(2).

III. ANALYSIS

A. Reasonable Suspicion

[15] It was Cst. Reid's unchallenged evidence that he detected the odour of an alcoholic beverage when he first approached Mr. Medeiros but could not tell whether it emanated from him or the interior of the van. However, once Mr. Medeiros was at the police cruiser, he could tell that the odour emanated from him. Section 254(2) requires only a reasonable suspicion. This is not an onerous standard and it is well established that the odour of an alcoholic beverage emanating from the suspect is sufficient: R. v. Lindsay (1999), 134 C.C.C. (3d) 159 (Ont. C.A.); R. v. Carson, 2009 ONCA 157. The demand in this case was valid.

B. The Alleged Charter Violations

(i) Section 9

[16] It is submitted that Cst. Reid had no basis upon which to detain Mr. Medeiros when he was first directed to exit the van and that by doing so, he violated his s. 9 Charter rights. Cst. Reid explained his justification for the detention as follows:

There would have been multiple offences that I was, was going to investigate, everything from the Highway Traffic Act [offence] of driving under suspension, which could have been one of the reasons why Mr. Medeiros exited the driver's seat and attended the rear of the vehicle, to the possibility that these gentlemen were planning to commit a criminal offence against the premise that they had pulled into, to a drinking and driving offence, sir.

[17] It is well established that the police have a common law power to detain individuals for investigative purposes. However, as the Supreme Court of Canada made clear in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (at para. 34), that power can only be exercised where the police have a reasonable suspicion that there is "a clear nexus between the individual to be detained and a recent or on-going criminal offence" and that "the particular individual is implicated in the criminal activity under investigation". In R. v. Nesbeth (2008), 2008 ONCA 579, 238 C.C.C. (3d) 567 (Ont. C.A.), the Ontario Court of Appeal recognized (at para. 18), that "it is not necessary that the officers be able to pinpoint the crime with absolute precision". However, while absolute precision is not required, this does not mean that a detention can be based on an investigation for unspecified "multiple offences" or the "possibility" that the individuals being investigated were planning to commit an offence. The justification offered by Cst. Reid was more than lacking in absolute precision. It was overly broad and came dangerously close to being an investigation based on a generalized suspicion of unspecified wrongdoing.

[18] However, notwithstanding my concerns in this regard, Cst. Reid's broad justification included at least a portion for which there was, in my view, a reasonable suspicion. The fact that Mr. Medeiros, upon noticing a police car behind him, pulled into a parking lot and immediately removed himself from the driver's seat gave rise to a reasonable suspicion that he had committed a drinking and driving offence. This offence was included in Cst. Reid's otherwise overbroad justification. As a result, in my view there was a valid investigative detention and Mr. Medeiros's s. 9 rights were not violated.

(ii) Section 8

[19] Cst. Reid conducted two searches of Mr. Medeiros. The first, immediately after the detention began, was a brief pat-down search over the clothes to ensure that he had no weapons. The second was a more detailed search incident to arrest.

[20] The first search was conducted based on concerns about officer safety. Unlike in the case of an arrest, an investigative detention does not justify an incidental search as a matter of course, as the Court in R. v. Mann, supra made clear (at para. 40):

The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, "Search Based on Articulable Cause: Proceed with Caution or Full Stop?" (2002), 2 C.R. (6th) 49, at p. 63. The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

The necessity for the search must be established based on "reasonable and specific inferences drawn from the known facts of the situation": R. v. Mann, supra at para. 40; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 at para. 41.

[21] The only basis for a safety search offered in this case was that there were several people in Mr. Medeiros's car. There is no evidence that Mr. Medeiros or any of his passengers appeared to be armed, had engaged in any threatening conduct or had a history of violent behaviour. In my view, in these circumstances there were no reasonable grounds to believe that the safety of Cst. Reid or anybody else was a risk. The search was not authorized by law and violated Mr. Medeiros's s. 8 Charter rights.

[22] The second search was incidental to the arrest for failing to comply with an ASD demand. There were ample grounds for arrest and the search was lawful.

(iii) Section 10(a)

[23] Section 10(a) of the Charter requires the police to "promptly" advise a person who is detained of the reasons for the detention. Mr. Medeiros was first detained at 1:07 a.m. An ASD demand was made very soon thereafter at 1:09 a.m. Once the demand is made, the person to whom it is directed knows why he is being detained and s. 10(a) of the Charter has been complied with: R. v. Wakernagel (2004), 16 M.V.R. (5th) 297 (Ont. S.C.J.) at para. 34; R. v. Pomroy, [2015] O.J. No. 2858 (S.C.J.) at para. 11. In my view, there was no s. 10(a) breach in this case.

(iv) Section 10(b)

[24] The right to counsel guaranteed by s. 10(b) of the Charter is justifiably overridden in the context of roadside investigations of drinking and driving offences: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3. As a result, while Mr. Medeiros was being detained for the purpose of investigating such an offence, there was no obligation on Cst. Reid to advise him of his right to counsel.

[25] In this case, however, the nature of the investigation changed after the initial ASD demand was made because Cst. Reid decided that he was also investigating a possible obstruction of justice. At 1:14 a.m., he placed Mr. Medeiros under arrest for obstructing a peace officer. At that point, the limit to the right to counsel ceased to operate.

[26] Once Mr. Medeiros was arrested for obstructing a peace officer, section 10(b) required that he be advised of his right to counsel "without delay". This meant immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 42. However, Mr. Medeiros was not advised of his right to counsel until 1:19 a.m., after another ASD demand had been made and refused and he was arrested for the refusal and subjected to a search incident to arrest. Crown counsel acknowledges that this delay constituted a "technical" breach of s. 10(b) but submits that it was justified by concerns for officer safety. I have already addressed why I do not accept that such concerns existed. While the delay in complying with s. 10(b) was only five minutes, it cannot be said that Mr. Medeiros was advised of his right to counsel "immediately". I am therefore prepared to find that there was a breach of s. 10(b).

(v) Section 24(2)

(a) Exclusion of Evidence of the Actus Reus

[27] Mr. Medeiros seeks to have excluded the evidence of his refusal to comply with the ASD demand. While counsel did not raise the issue, there is some uncertainty in the law about whether the actus reus of the offence of refusing to comply with a demand can be excluded following a Charter violation. This issue is fully canvassed by my colleague, Stribopoulos J., in R. v. Soomal, [2014] O.J. No. 2160 (C.J.) at paras. 63-83. I adopt the conclusion reached in that case. In my view, s. 24(2) can apply to the evidence of the refusal.

(b) Seriousness of the Violation

[28] Determining whether the evidence ought to be excluded requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the first of which is the seriousness of the violation.

[29] With respect to the s. 8 breach, Cst. Reid does not appear to have turned his mind to the limits of his common law power to search an individual pursuant to an investigative detention. Common law police powers are necessarily flexible and will vary depending on the situation in which they are exercised. The only way to ensure that those powers are not exceeded is for police officers to constantly be mindful of the limits of their powers. Cst. Reid seems to have simply assumed that he was entitled to search Mr. Medeiros without considering whether such a search was truly necessary. Consequently, while the violation was by no means demonstrative of a blatant disregard of the Charter, I cannot characterize it as merely technical or trivial.

[30] As for the s. 10(b) breach, as noted earlier there would have been no requirement for compliance with s. 10(b) but for Cst. Reid's decision to arrest Mr. Medeiros for obstructing a peace officer. Section 10(b) was complied with a short time thereafter. I am somewhat concerned about Cst. Reid's belief that in the case of an investigative detention, s. 10(b) had to be complied with "as soon as practicable". I would have thought that six years after R. v. Suberu was decided, all police officers would be aware that the right to counsel must be provided immediately. However, in the circumstances of this case, the breach was, in my view, relatively minor.

(c) Impact of the Breach

[31] The search of Mr. Medeiros was a relatively non-intrusive pat-down search over his clothing without going into his pockets. Nothing was found or seized. The impact on Mr. Medeiros's Charter-protected interests was minimal.

[32] With respect to s. 10(b), the breach consisted of a five-minute delay in advising Mr. Medeiros of his right to counsel. The need to comply with s. 10(b) arose only because Cst. Reid decided to arrest Mr. Medeiros for obstructing a peace officer, a charge the Crown ultimately did not proceed with. As well, when Mr. Medeiros was advised of his right to counsel, he declined to exercise it and told Cst. Reid that he would instead call his lawyer the following day. In short, if the breach had not occurred, the investigation would still have unfolded exactly as it did. There was little, if any impact on Mr. Medeiros's Charter-protected interests.

(d) Society's Interest in an Adjudication on the Merits

[33] There is no suggestion that the evidence sought to be excluded is not reliable and it is indispensable to the Crown's case. This branch clearly favours admission.

(e) Balancing

[34] While there was more than one Charter breach, neither was very serious and neither had any significant impact on Mr. Medeiros's Charter-protected interests. There is a strong societal interest in an adjudication on the merits. Having balanced the various factors, I am not persuaded that the evidence ought to be excluded. The Charter application is accordingly dismissed.

IV. DISPOSITION

[35] The evidence that Mr. Medeiros refused to comply with a valid ASD demand is admissible and unchallenged. I find him guilty.

Justice P.A. Schreck

Released: December 10, 2015

[1] The charge of obstructing a peace officer was dismissed at the invitation of the Crown.