Court File and Parties

Ontario Court of Justice

Date: July 12, 2016

Court File No.: Brampton 15-5670

Between:

Her Majesty the Queen

— and —

Alyssa Lorenzo

Before: Justice Kathryn L. Hawke

Heard on: May 4, 2016

Reasons for Judgment released on: July 12, 2016

Counsel

Ms. N. Engineer — counsel for the Crown

Ms. H. Spence — counsel for the defendant Lorenzo

HAWKE J.:

INTRODUCTION

[1] The Defendant is charged with Over 80 with an offence date of May 2, 2015. The trial was heard on May 4, 2016. An Application was brought by the Defendant alleging breaches under Sections 8 and 9 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. The trial and the Charter Application were heard in a blended proceeding. By the end of this proceeding defence counsel conceded all issues, save and except for the alleged violation of Section 9 of the Charter. This claim is based on evidence that Peel Regional Police officers failed to release the Defendant after the investigation was completed, and thereafter kept her detained for an additional six hours.

[2] Submissions were made and the case was adjourned for judgment. Thereafter, R. v. Pino, 2016 ONCA 389 was released. When I saw this decision I decided that the parties should be given an opportunity to make further submissions with regard to a remedy for any breach. Thereafter, I decided that there was a breach of Section 9 of the Charter in this case. In court on June 8, 2016, I informed the parties of this decision and indicated that I would release written reasons concerning my finding of a Section 9 breach. What follows are those reasons. In court we agreed that the parties would have an opportunity to make further submissions on the issue of remedy after receiving these reasons.

THE EVIDENCE

Cst. Ben French

[3] Cst. French was the arresting officer in this matter. At 1:40 a.m. on May 2, 2015, he was on uniform patrol and engaged in the "Last Drink Program". As explained by Cst. French this is a targeted enforcement program established by Road Safety Services and the Impaired Countermeasures Unit of Peel Regional Police. One aspect of the program involves the police keeping a list tallying impaired driving related offences and where offenders had their last drink. At the time of this investigation a bar named "& co." was #1 on this list. On May 2, 2016 Cst. French was planning to check vehicles leaving this bar and he was parked on Enfield Drive, in the City of Mississauga, in such a way as to have a view of the parking lot of the "& co." bar.

[4] At 1:42 a.m. Cst. French observed and followed the Defendant's vehicle. She left the "& co." parking lot and went westbound on Enfield, right onto Kariya Drive and then right to eastbound Burnhamthorpe. Cst. French did not observe any driving issues. He stopped the Defendant on Burnhamthorpe for the purposes of checking sobriety at 1:42 a.m. The Defendant was driving and there were three passengers. While speaking to the Defendant Cst. French noticed an odour of alcoholic beverage on her breath, red and watery eyes, and she admitted to consuming alcohol a few hours prior. He formed the suspicion that, while operating a motor vehicle, she had alcohol in her body so he asked her to step out for a test.

[5] The Defendant complied with Cst. French's request and then he read her the formal ASD demand, tested the machine, gave the machine to the Defendant and after seven attempts she gave a suitable sample that registered as a Fail on the ASD. At 1:47 a.m. he formed his grounds and he arrested the Defendant for "operating a motor vehicle with excess blood alcohol content". Thereafter he read Rights to Counsel at 1:48 a.m., the Caution at 1:49 a.m., and the breath demand at 1:50 a.m. The Defendant had no difficulty understanding these things. He took the Defendant's purse from the motor vehicle and left the scene at 2:04 a.m. and drove to 12 Division. Before he left the scene he turned responsibility for seizing the motor vehicle over to Cst. Lucas, who had just arrived.

[6] In cross-examination it was made clear that other than the things mentioned above (i.e. alcohol on breath, red watery eyes, and admission of consumption) there were no problems with the defendant or her vehicle. The officer agreed he was alive to the distinction between, having the suspicion necessary for the ASD demand, or having grounds for arrest for impaired operation. He was clear he had "just enough for a suspicion". Also, he described the Defendant as being "extremely cooperative throughout".

[7] Cst. French testified as to the following sequence of events at the 12 Division:

• At 2:10 a.m. he arrived with the Defendant.
• At 2:11 a.m. Cst. French called Duty Counsel as per the Defendant's request.
• While the Defendant waited for Duty Counsel to call back Cst. Munroe started booking the Defendant into the station and also Cst. French gave his grounds for arrest to the Breath Technician.
• At 2:19 a.m. the Defendant spoke to Duty Counsel for about three minutes and afterwards she told Cst. French she was satisfied and understood.
• After this call, the booking process was continued with Staff Sgt. Raymore attending and asking the customary questions about health etc.
• At 2:30 a.m. Cst. French turned the Defendant over to Cst. Leamon, the Breath Technician.
• Cst. French stayed in the breath room until the first sample was taken and then he left.
• At 3:02 a.m. the Defendant was returned to Cst. French by the Breath Technician.
• Cst. French also received documents from the Breath Technician. His evidence about naming a couple of these documents was somewhat poor but this did not affect the trial because the Breath Technician was also a witness and he clarified the necessary points.
• Among other things, Cst. French was clear that he received a copy of the Alcohol Influence/Test Report from the Breath Technician.
• At 3:08 a.m. Cst. French served documents upon the Defendant in the "cell area" but did not leave them with her. Instead he put them with her property.
• The Defendant was lodged in the cells by Cst. French.
• Cst. French then attended with the officer in charge of the Division, Staff Sgt. Raymore.
• After this brief meeting with Staff Sgt. Raymore, Cst. French understood that the Defendant was to be held until sober and he noted this on his Driving Offence Notes & Evidence along with the defendant's boyfriend's name and number.
• At some point Cst. French gave the information about the Defendant's boyfriend to Cst. Munroe.

[8] The following are additional pieces of evidence from the cross-examination of Cst. French.

• All of the documents, including the release document, a Promise to Appear, were prepared by 3:08 a.m.
• One of the documents he served and explained at 3:08 a.m. was the ADLS (Administrative Driver's License Suspension) and then it was put with the Defendant's property.
• The Defendant was put into the cells prior to Cst. French going upstairs to have a conversation with Staff Sgt. Raymore.
• If the Staff Sergeant had ordered a release, he would have returned downstairs to get the Defendant for release.
• When he met with Staff Sgt. Raymore, at the duty desk upstairs, the only information he conveyed was that the paperwork (i.e. the documents served) was completed and the breath readings.
• He did not make any recommendations to the Staff Sergeant regarding release and this was consistent with his usual practice of only saying something if there was a serious problem.
• In his Driving Offence Notes & Evidence, there is a section entitled Release/Hold in Custody. Within the questions in this section his note is: "until sober" and a phone number for "Matthew boyfriend". He agreed that the "until sober" part had been specifically communicated to him.
• Cst. French passed on the information about the boyfriend to the cells officer Cst. Monroe.
• When Cst. French was asked if he believed his note about being held until sober had to do with the readings he indicated that, although it was not a hard and fast rule, in his experience Staff Sergeants generally release in the area of 100 milligrams of alcohol in 100 milliliters of blood, so in the case of the Defendant he expected that she would be held for at least two hours.

[9] One of the things mentioned by Cst. French in his evidence was the "Last Drink Program". A review of the Peel Regional Police website (accessed on June 06, 2016) confirms Cst. French's description of the "Last Drink Program". This information is under Specialized Units – Impaired Countermeasures. The site conveys an overall message that Peel Regional Police have consistently focused on, and sought to improve, enforcement in the area of drinking and driving. Coincidently, Cst. French is mentioned in the same section of the website. He is listed as #2, in a non-alphabetical list of seven officers, who for 2013 – 2014 received a "Constable Matt Parr Apprehension Award". The site describes this award as follows: "On October 26, 1996, Peel Regional Police officer Matthew (Matt) PARR tragically died when his vehicle was struck by a drunk driver. The following year, Peel Regional Police began to honour the memory of this lost officer by creating the Matt Parr Award, which recognized the efforts of officers who effectively apprehended Impaired Drivers."

[10] It is also noteworthy that Cst. French testified using his "Driving Offence Notes & Evidence". From presiding in Brampton it is my experience that in all but the rarest of cases every police officer with Peel Regional Police uses this document in drinking and driving cases, and have they have done so for years. It is essentially a four page preprinted document with additional pages available for additional notes. The four page pre-printed part provides fill-in-the-blank and check-off-the-boxes guidance for a drinking and driving investigation, including check-off-the-boxes options for specific observations. It includes the wording for specific suspicions and beliefs. Also scripts for things to be said to an accused are included. (e.g. Right to Counsel, Breath Demand etc.)

[11] A full half page of this document is devoted to observations of the accused at the scene. There are thirteen categories, with boxes within each that can be ticked off for specific observations and there is also room for additional observations. The thirteen categories are: Affects of alcohol or drugs; Breath; Colour of Face; Eyes; Speech; Clothes; Balance; Footwear; Attitude; Unusual Actions; Pupils; Condition of Clothes; and Walking. The effect of the boxes within each category is that there is also significance to the boxes that are not checked off because the officer's mind has been directed to the detail. It is also clear that any arresting officer is to continue recording observations beyond the time of arrest given there is also space for his observations even after he/she has turned an accused over to the Breath Technician.

Cst. Scott Leamon

[12] Cst. Leamon was the Qualified Breath Technician in this case. He testified by referring to his Alcohol Influence/Test Report.

[13] Cst. Leamon testified as to what Cst. French said when he provided his observations and grounds to him at 2:15 a.m. This matched Cst. French's testimony. Cst. French brought the Defendant into the breath room at 2:30 a.m. Cst. Leamon's work was not contested in the trial, and his testimony resulted in a reading of 145 mg. of alcohol in 100 ml. of blood at 2:37 a.m. and 135 mg. of alcohol in 100 ml. of blood at 3:00 a.m. After the second test he advised the Defendant that she would be charged with operating a motor vehicle with excess blood alcohol.

[14] Cst. Leamon also provided his observations of the Defendant. He called them "minor observations" and they included an odour of alcohol during conversation, and red rimmed watery eyes with dilated pupils. He described the Defendant as being very cooperative, she understood everything, had no communication issues and she had no gross signs of impairment.

[15] Cst. Leamon was also responsible for a number of documents. He retrieved a single document containing the Certificate and the Notice of Intent from the device and checked it for accuracy. He prepared the 90 day Administrative Driver's License Suspension, the Statutory Warning, and the Promise to Appear.

[16] With regard to the Promise to Appear, he was not responsible for the decision to release but rather he prepared the document with appropriate dates for potential use. He returned the Defendant back to Cst. French along with all of the documents. He had no significant conversation with Cst. French because he believed Cst. French was quite versed in these matters and did not need to have things explained. He did not speak to the Staff Sergeant responsible for release and it was not his practice to do so unless there was something serious and extraordinary such as someone in really bad shape, someone needing hospitalization, someone who was in a major accident or who was completely intoxicated.

[17] I note from the Promise to Appear, that is attached to the Information before the court, that the date Cst. Leamon picked for the first court date was May 19, 2015, some seventeen days later. This is consistent with defendants being given an early day for each Division's first appearance court. These early dates have been established through coordination between the Peel Regional Police, the Peel Crown Attorney's office and the Ontario Court of Justice. These early dates provide early disclosure and access to Duty Counsel which in turn allows defendants sufficient time to expeditiously organize an early plea for those hoping to qualify for Part I of the Interlock Program.

[18] I also note, as would be apparent to all counsel and judges who are involved in drinking and driving cases in Peel, that the Alcohol Influence/Test Report used by Cst. Leamon is completed by all Qualified Breath Technicians in Peel. This is a five-page document plus one or more additional pages for "Additional Notes". It acts as a guide for rights and cautions etc. and it is a place where the technician records the readings etc. Among other things, the form requests that the Breath Technician to record the arresting officer's observations and reasonable and probable grounds regarding an accused and it also requires the Breath Technician to record his/her own observations of an accused. With regard to the latter there are ten categories with check-off-the-box choices within each and there is room for detailed notes.

Staff Sgt. Heather Raymore

[19] Staff Sgt. Raymore was the Officer in Charge of 12 Division from 5:00 p.m. the day before until approximately 4:30 a.m. on May 2, 2015. She does not recall the defendant specifically but from notes on the log sheet she was able to say that she saw the defendant at 2:26 a.m. when the Defendant was booked into the station. She viewed the Defendant and filled in the medical questions at the bottom of the prisoner log sheet.

[20] She testified that later that night (no time was given), she directed front desk personnel, Cst. Munro specifically, to call the defendant's boyfriend. She testified that if the boyfriend was in a responsible state, the defendant could be released to him.

[21] Thereafter she was asked by the Crown "Did you decide to hold until sober?" Staff Sgt. Ramore did not say yes or no to this question but rather indicated she "took several things into consideration" and then she listed them as follows: (Note: this is one quotation where I have, for convenience, inserted numbers)

i. "Ms. Lorenzo's blood alcohol levels,"

ii. "if there was a responsible person to pick Ms. Lorenzo up,"

iii. "if Ms. Lorenzo had a criminal record,"

iv. "any outstanding charges,"

v. "whether her vehicle was impounded"

vi. "her demeanour which often goes to sobriety,"

vii. "and also the fact that she had exhibited poor judgment by recently drinking and driving"

[22] Staff Sgt. Raymore did not provide any details whatsoever in her evidence with regard to any aspect of this list or the Defendant's circumstances. Also, it did not seem as if the list was recorded in any way. She simply stated, after reciting this list, "Taking all those things into consideration I made the decision it was appropriate to call her boyfriend and if he was in a responsible state, to release her to the boyfriend." In cross-examination she was asked "Q, So in terms of taking into account all the things you should in releasing somebody she was a candidate for release? A. Yes, that was my opinion." Further: Q. "… unless something changes in your opinion releasable? A. In my opinion. Staff Sgt. Lang may have had a different opinion."

[23] Staff Sgt. Raymore testified that she does not know for sure that the boyfriend was called. She agreed in cross-examination that she has a note "Boyfriend of Alyssa called to come pick up." When the shift changed she says that she told Acting Staff Sgt. Lang, who was replacing her, that the boyfriend had been called and that was the sum total of what she told him. She confirmed that the booking constable and the constable at the front desk is the same person on any given shift. She had an expectation that her instruction to Cst. Munro, about the boyfriend, would be passed along to his replacement, but she cannot confirm this.

Cst. Kenneth Munroe

[24] Cst. Munroe was the cell officer on the same shift as Staff Sgt. Raymore. All of his notes were made on the Prisoner Log Sheet, the Prisoner Observation sheet or the Prisoner's Property Envelope Record. He had contact with the Defendant when she was booked into the station and he filled in the paper work about the time of arrest, the charge, call to duty counsel etc. and he summons Staff Sgt. Raymore about the new arrival. He testified that after the booking procedure he released the Defendant to the Breath Technician and later he received the Defendant back from the Breath Technician. At this point he was informed of the results and depending on the results "she can be placed in the cells or released". When asked who determines release he indicated that it is the Staff Sergeant of the building. In this case the Staff Sergeant said she "could be released to friends or family member, someone who could take custody of her, in the right mind set or capable person."

[25] His testimony is that he called the Defendant's boyfriend and spoke to him. He briefly told him why the Defendant was at the Division and that she could be picked up upon his arrival. Thereafter he did not have contact with or hear about the boyfriend for the duration of his shift. In cross-examination he could only give the time of the call by deduction by suggesting it was probably between 3:15 a.m. and 3:30 a.m. given the final blow was at 3:00 a.m. He did not recall if the boyfriend said he would come but he assumes that he did because otherwise he would try to call someone else. He confirmed there was nothing in the paperwork about the Defendant being cleared for release by Staff Sgt. Raymore.

[26] He testified that the practice is that the Breath Technician prepares, and establishes the dates, on the Form 10 - Promise to Appear re: Prints and the Promise to Appear. The arresting officer has these with him when he speaks to the Staff Sergeant in charge of the station. If the Staff Sergeant approves the Form 10 then it is kept with the cell sheet at the front desk. If the Form 10 is there then "they" are going to be "eligible" to release.

[27] At shortly before 5:00 a.m. Cst. Munroe says he verbally "debriefed" his replacement Cst. McDonald about what was happening with the prisoners and any concerns he should have been made aware of. He asserts that this would have included advising of the call to the boyfriend. No notes were made of this exchange.

[28] He was asked about the conditions in the cells and he indicated when asked that toilet paper is available on request. This request would need to be made when he did one of his "walk-bys".

[29] I accept that Cst. Munroe called the Defendant's boyfriend. He is not necessarily a reliable witness on other details however. I say this because he seemed to place himself into what in fact was Cst. French's role from time to time (eg. who did the turnovers of the Defendant with the Breath Technician) and he does not recall getting the boyfriend's number from Cst. French. Further, all indications are that Staff Sgt. Raymore only mentioned a possible release to the boyfriend and not the list of people recalled by Cst. Munro. He asserted he recalled meeting the Defendant and said that she was charged with Impaired Operation and she looked as if she was under the influence. He was clearly wrong on both points. He did manage to correct the first point when referred to his notes and it appears as if he has no notes on the second point. Overall, it seemed that he wanted to leave the court with the impression that he had a good memory of this routine event so that he would be believed about things he does not have notes to support. This would include the time of his call to the boyfriend who has testified to a later time. It also includes Cst. Munroe's evidence that he told Cst. MacDonald about calling the boyfriend whereas Cst. MacDonald does not a memory of this.

Acting Staff Sgt. Lang

[30] Acting Staff Sgt. Lang was not at court to testify. Defence counsel provided the following agreed statement of fact.

That the officer, officer Lang, indicates that my client's readings in his mind would put her at a safe release time of approximately 6 am, and he said that would have her below the 100 mark, and the other indication was that, is that, he doesn't know why, or has no explanation why she was held to 9:20.

[31] This admission, as far as the readings are concerned, appears to be one that was made with the benefit of hindsight as opposed to being evidence about reasonable grounds averted to at the time. If it was with respect to grounds formulated at the time one would expect some type of explanation for why any decision flowing from the grounds was not acted upon. Something as simple as 'I was busy with x and I forgot' could potentially support finding that Staff Sgt. Lang did in fact turn his mind to the Defendant's detention. There is nothing like that here.

[32] The admission is also devoid of any other information that would assist in understanding what, if any, grounds Staff Sgt. Lang had. For example it is unknown whether he means she was releasable on her own at 6:00 a.m. or would he have wanted a responsible person, such as her boyfriend involved. If he did want someone like the boyfriend involved, why did he think differently than Staff Sgt. Raymore re: when this could happen? If it was on her own, without someone like her boyfriend, why then did he not explore the concept of an earlier release to a responsible person? Did Staff Sgt. Raymore tell him about her actions of having the boyfriend called? If so, did he disagree with Staff Sgt. Raymore? If so, why?

[33] It is also notable that one can infer that Staff Sgt. Lang was using a conservative elimination rate. It is common to hear in court that elimination rates for alcohol fall between 10 - 20 mg. of alcohol in 100 ml. of blood per hour, with the average rate being 15. The use of a rate of 15 mg. per hour comes up often in reported cases when referring to evidence of the police justifying detention. In this case, when Cst. French made this mental calculation he thought she would be held for at least two hours. It appears he was likely working with a rate of 15 mg. per hour, combined with his belief the time would run until she was got to 100 mg. of alcohol in 100 ml. of blood. (eg. Last reading 3:00 a.m. = 135, est. at 4:00 a.m. = 120, est. at 5:00 a.m.=105 , est. at 6:00 a.m.= 80).

[34] Staff Sgt. Lang seems to be using an unknown number that is closer to 10 mg. per hour. (eg. Last reading 3:00 a.m. = 135, est. at 4:00 a.m. = 125, est. at 5:00 a.m = 115, est. at 6:00 a.m. = 105 ) Certainly, the calculation of the elimination of alcohol can be more complicated than the estimates I have used. Some people are still absorbing alcohol at the same time as they are eliminating and each individual can have an individual rate of elimination somewhere along the scale. Looking at the two readings in this case however, there is no reason based on them to suspect either of these two problems. The first reading was 145 mg. of alcohol in 110 ml. of blood at 2:37 a.m. and 135 mg. of alcohol in 100 ml. of blood at 3:00 a.m. so they were coming down and there is no suggestion of a slow rate of elimination.

[35] One cannot help but think that the more conservative elimination rate helps to Staff Sgt. Lang cover off more of the unexplained time.

[36] Finally, based on the admission there is a minimum of three hours and twenty minutes that Staff Sgt. Lang cannot account for.

[37] As Staff Sgt. Lang did not testify he could not be confronted with the questions I have raised. This does not mean that I have to find the admission reliable and with regard to the part that concerns the readings I do not find it to be reliable in its conclusion nor as reliable evidence to support any inference that Staff Sgt. Lang ever turned his mind to the Defendant's detention.

Cst Michael MacDonald

[38] Cst. MacDonald testified using the Prisoner Log and Observation sheet and he has no memory of dealing with the Defendant. He relieved Cst. Munro shortly before 5:00 am. He outlined the normal protocol of reviewing the prisoners currently lodged during this change. If there was something about release he would expect it to be written on the log. There is no note to this effect. He checked the prisoners every half hour either by monitor or by walking through the cells. He came and went from the front desk.

[39] As far as the release is concerned he brought the Defendant to the front counter, on Staff Sgt. Lang's instructions. Staff Sgt. Lang released the Defendant at 9:20 a.m. He does not know why her release was at this time and he can only assume that it had to do with her breath levels. He acknowledged this was standard practice at the station regardless of someone's physical appearance. He had no knowledge of anyone attending the station before then trying to pick the Defendant up. He could not identify any problems, or normal procedures, in the cells that morning that would delay the release in this case.

Alyssa Lorenzo

[40] The Defendant testified on the s. 9 Application only. She was 22 years old at the time. She indicated that after the breath tests she sat on a bench until Cst. French also came out of the breath room. He asked her for her shoes and he briefly did some paperwork before putting her in a cell. Also before being put in the cell one of the officers asked for a phone number in case she would be able to be released. She provided her boyfriend's name and number. She was given no information about when she might be released. She was told she would be released when she was able to be released. She found the cell to be pretty cold especially given she was in bare feet. At one point she called out a few times because of the lack of toilet paper. No one heard her so she used the toilet anyway. She recalls there being very few interactions with her. There was one occasion where she heard a voice asking if she was 'OK' and she answered 'yes'.

[41] When it came time to be released there were papers to fill out. She asked to use the phone to call Matt, her boyfriend, in order to try to get a ride. He did not answer so she took a taxi. She asked them if they had called him and was told yes, but they had been unable to reach him. She took the taxi to where her mother's car was impounded in order to try to find her cell phone, expecting that Matt might pick up if he saw her number. She did not find it so she took the taxi to his home where she went to sleep. The Crown in cross-examination suggested that this was to "sober up" and to "sleep it off". The Defendant did not balk at this terminology but my impression was that this was not an admission of any intoxication beyond what the officers saw. She clearly had been up late and had not achieved any fitful rest on the concrete bench in the cell and she slept because she was tired from the whole experience.

[42] I found the Defendant to be a credible witness who was not shaken in cross-examination and who was subdued and did nothing to amplify or exaggerate her evidence.

Matthew Gonzalez

[43] Mr. Gonzalez is the Defendant's boyfriend. An Affidavit by Matthew Gonzalez was filed as part of the Application and he identified it and it was filed as Exhibit 1.

[44] The evidence from his Affidavit is that on May 2, 2015, he received a call from a police officer around 4:30 a.m. telling him that his girlfriend had been arrested for drinking and driving and that he could come to the station to pick her up. Sometime after 5:00 a.m. he arrived at the police station and he spoke to two officers at the front desk. They did not know about the officer who called and they told him that Alyssa was not ready to be released. They told him to go home and they would call when she was ready. He did not receive another call from the police.

[45] When testifying he said he could not remember the name of the officer who called. When he got the call he was still awake from the evening before as he was expecting a call from the Defendant. He had tried unsuccessfully to reach her. When the police called he got ready and went to the police station, which was approximately a 10-15 minute drive from his home. He arrived around 5:00 a.m. Concerning the officers at the desk he says they seemed confused, they said no one had been told to make a call, he also thinks they may have said the officer who called had left, and they went through a binder and they did not call anyone else in the station. There was a male and female officer and he did not recognize any of the officers coming and going from the courtroom as they testified. He left the station in less than 5 minutes.

[46] In the morning his mother woke him to say that Alyssa had arrived. They spoke briefly and they both went to sleep.

[47] I found Mr. Gonzalez to be a credible witness. His evidence was straightforward, logical, internally consistent and accords with common sense in the circumstances.

ANALYSIS

[48] Section 9 of the Charter provides "Everyone has the right not to be arbitrarily detained or imprisoned."

[49] Section 498(1) of the Criminal Code mandates that a person in the Defendant's position of having been arrested and detained without a warrant "shall", "as soon as practicable" be released by an officer in charge with an exception where an officer has an appropriate belief, based on "reasonable grounds", for not doing so. The section states as follows:

498. (1) Release from custody by officer in charge - Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or……., or……. or……., and has not been taken before a justice or released from custody under any other provision of the Part, the officer in charge or another peace officer shall, as soon as practicable ,

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear ;

(c) (release on a recognizance without sureties in certain circumstances)

(d) (release on a recognizance without sureties and possibly with a deposit in certain circumstances)

(1.1) Exception - The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds ,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of the Part, having regard to all the circumstances including the need to

(i) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of an victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

(Emphasis added)

[50] It is clear from the evidence that only those officers who were officers in charge, i.e. Staff Sergeant Raymore and Acting Staff Sergeant Lang were authorized to make a decision under s. 498 and to carry out the mechanics of the actual release i.e. having the Defendant sign the Promise to Appear in his/her presence.

[51] It is also clear that the Defendant, Ms. Lorenzo, was not held past 3:08 a.m., by either officer in charge, based on any of the specific criteria set out in s.498(1.1). This was never in issue, neither in the evidence nor in submissions.

[52] The remaining question is whether either or both officers in charge had reasonable grounds, for justifying continuing the detention of Ms. Lorenzo, that were based on this detention being necessary in the public interest, having regard to all the circumstances.

[53] Both counsel referred extensively to the decision of Justice Durno in R. v. Price, 2010 ONSC 1898. This decision is helpful because it tracks the legal history of this issue generally and in Peel specifically. Also, for the issue at hand paragraph 93 provides assistance.

While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

Did Staff Sgt. Raymore have reasonable grounds, for justifying continuing the detention of Ms. Lorenzo, that were based on this detention being necessary in the public interest, having regard to all the circumstances?

[54] Staff Sgt. Raymore's evidence, reviewed above, is seemly impressive at first as she recites much of the list set out by Justice Durno in R. v. Price but a closer review illustrates that her evidence does not support answering this question in the affirmative.

[55] When Staff Sgt. Raymore was asked by the Crown "Did you decide to hold until sober?" she did not say yes or no to this question but rather indicated she "took several things into consideration". Leaving aside any collective effect for a moment, I note the following about the circumstances that Staff Sgt. Raymore sited as contributing to her decision. (For convenience, I have once again inserted numbers as above)

(i) "blood alcohol levels"

[56] Everyone who is charged with Over 80 has blood alcohol levels. This alone says nothing about this Defendant. Further, Staff Sgt. Raymore did not in any way describe the levels in this case and what, if anything, they meant to her personally in formulating her grounds. Likewise she did not refer to any policy or information she might she might have used to inform herself on this front.

(ii) "if there was a person to pick up"

[57] Although she did not say so initially in her evidence it is apparent that any such person did not include anyone and everyone. The additional qualifiers were described later in Staff Sgt. Raymore's evidence when speaking specifically about the Defendant's boyfriend: "if he was in a responsible state to release her to the boyfriend." Staff Sgt. Raymore did instruct that a call be made to the Defendant's boyfriend but her evidence about her knowledge of whether the call was in fact made is contradictory (see: para 23 above). It is clear that she neither received nor sought feedback from any such call to inform her of the Defendant's boyfriend actual availability. This, plus the fact that she had no information about his "state" really means she had no actual information at all about whether there was "a person who could pick up."

iii) "if there was a criminal record"

[58] Staff Sgt. Raymore did not mention the Defendant having/not having a criminal record and as far as I can tell she did not have one.

iv) "any outstanding charges"

[59] Staff Sgt. Raymore did not mention the Defendant having/not having any outstanding charges and as far as I can tell she did not have any.

(v) "whether her vehicle was impounded"

[60] This was done in this case and it is done under statute in all cases of this nature. Presumably Staff Sgt. Raymore knew this and she certainly had an opportunity to confirm this with Cst. French.

(vi) "her demeanour, which often goes to sobriety"

[61] Staff Sgt. Raymore met personally with the Defendant for a very few minutes in order to get answers to medical questions as she was being booked into the station. Staff Sgt. Raymore has no memory of the Defendant. She did not give any evidence about the Defendant on this front.

vii) "also the fact that she had recently exhibited poor judgment by drinking and driving."

[62] This circumstance would apply to every over 80 case where there were no delays in the investigation. In these cases the recency of poor judgment 'might' be relevant, but only if one had reason to believe that the poor judgment would continue and thereby speak to the specific exception of s. 498 (1.1) (a)(iii) - "to prevent the continuation or repetition of the offence or the commission of another offence". 'Might' however does not have a place in reasonable grounds. Grounds need to be based on actual circumstances in any given case. Staff Sgt. Raymore knew that the Defendant's license had just been suspended and that the car she had been driving had been seized. She had no basis for believing that this would not sufficiently deter this Defendant from any continuation of the offence or a similar offence.

[63] I conclude:

• Staff Sgt. Raymore's list was simply a recitation of a list that did nothing beyond paying lip-service to potential factors
• In her testimony, there is a complete lack of evidence as to how these potential factors contributed to reasonable grounds for the continuing detention of this Defendant being necessary in the public interest having regard to all the circumstances
• Therefore, based on the evidence, Staff Sgt. Raymore did not have grounds for the continuing detention of Ms. Lorenzo.

[64] Staff Sgt. Raymore's action of starting to explore (ii) "if there was a person to pick up" by requesting a call be made to the boyfriend does nothing change my conclusion.

• I note that this factor cannot sensibly be a first step consideration when formulating grounds to continue detention. As Ms. Lorenzo's case illustrates including this circumstance in the officer's grounds involves circular reasoning because the conclusion that she could be released to the boyfriend (if he was in a responsible state), was because she had a boyfriend to call. This is analogous to person at a bail hearing, who would otherwise be released on a Recognizance, instead being released on a Recognizance with a surety, simply because he/she had a potential surety available. This circular reasoning becomes particularly dangerous where, as in this case, there is no evidence of other factors that would support the continuing detention. It cannot be that everyone charged with Over 80 needs to be picked up and turned over to a responsible adult.

• I further note that the act of starting to explore this factor was totally insufficient. Staff Sgt. Raymore did not follow-up in any way to find out the availability or the suitability of the Defendant's boyfriend and if necessary to consider alternatives. All the while she was under a statutory obligation under s.498 of the Code to release as soon as was practicable and beyond asking for one call to be made she did nothing.

[65] One cannot ignore why Staff Sgt. Raymore had almost no evidence to give about the Defendant. Staff Sgt. Raymore was under a statutory duty to release the Defendant as soon as practicable and to do so with due attention to the circumstances of this particular Defendant. On the second aspect all Staff Sgt. Raymond did, through a brief contact with Cst. French, was to learn of the readings, the fact that the paperwork was done, and of the existence of a possibly available boyfriend.

[66] No other information was sought and this was in the face of information about the Defendant being readily available. By the time Cst. French met with Staff Sgt. Raymore he had been with the Defendant throughout the investigation save and except for the time after her first blow to the time she was returned to him by the Breath Technician. Also at the time Cst. French met Staff Sgt. Raymore he also had his own report, the Driving Offence Notes & Evidence, which had been completed save and except for filling Raymore's decision. Further, Cst. French had the Breath Technician's report in the form of the Alcohol Influence/Test Report. These were reports by two officers who were experienced in drinking and driving matters. These reports, save and except for three minutes while speaking to Duty Counsel, accounted for all observations made of the defendant during the investigation. Staff Sgt. Raymore could have learned a long list of potentially negative things that were absent in this case, including lack of any indicia for grounds for impaired operation. She could have learned that beyond a smell of alcohol the only things thing these officers observed was red watery eyes and in one case dilated pupils. She could have learned the Defendant was extremely/very cooperative, understood everything and had no difficulty communicating. Making an enquiry with Cst. French directly and/or reviewing these readily available reports would have meant that she would have information, and in this Defendant's case positive information, about attitude, intoxication and lack thereof, capacity to understand and willingness to exercise good judgment.

[67] Given the well-established role of the arresting officer and the standardized reports in drinking and driving cases in Peel, I think it is fair to assert that a complete lack of enquiry about circumstances of a specific accused through these sources amounts to willful blindness. All of the evidence in this case also supports a finding that in most cases, save and except where one of the investigating officers steps up to report something particularly negative, this approach of Staff Sergeants making no enquiry about the investigation of individual accused is standard procedure.

Did Staff Sgt. Lang have reasonable grounds, for justifying continuing the detention of Ms. Lorenzo, that were based on this detention being necessary in the public interest, having regard to all the circumstances?

[68] The review of Staff Sgt. Lang's evidence in paragraphs 30-37 above discloses more questions than answers. I am unable to find that he ever turned his mind to justifying Ms. Lorenzo's detention before he decided to release her at 9:20 a.m. Therefore, I am unable to answer the question in the affirmative and I find that Staff Sgt. Lang did not have reasonable grounds for this detention.

[69] I also make the same findings with respect to his evidence as I did with Staff Sgt. Raymore. He did not seek out information and readily available reports concerning this Defendant that would inform him about the circumstances of Ms. Lorenzo.

What is the effect of the lack of effective communication between the two cell officers and the fact that the Defendant's boyfriend was sent away when he attended at the station?

[70] There were a lot of submissions about these points and whether these things represented only an administrative error. Submissions about the seriousness or lack thereof of suggested administrative error were also made.

[71] I believe the focus of the argument on these problems was misplaced. The fact that the Defendant was not released was not caused by these actions. These actions cannot be called administrative errors given that the officers involved had no authority to do/act under s. 498 of the Code and none of them were given anything to administer or execute by either officer in charge beyond the making of one phone call and this was in fact done. The circumstances surrounding the boyfriend being sent away was an aggravating feature on top of the larger pre-existing problem of the Defendant's unjustified continuing custody.

[72] There was no decision by either officer in charge, before 9:20 a.m., to release the Defendant. In particular, in addition to reasons above, it should be noted that Staff Sgt. Raymore's agreement with the suggestion that she thought the Defendant was 'releasable' does not change anything. She did not take necessary steps to see if there was a real possibility of releasing the Defendant to someone as soon as practicable. Further, she was totally comfortable with the idea that Staff Sgt. Lang might decide to not pursue the idea of having someone pick the Defendant up. It follows that she remained agreeable with the Defendant remaining in custody.

[73] In the best of all worlds one would wish that Cst. Munroe, Cst. MacDonald and especially whoever was on the desk when Matthew Gonzalez attended had alerted, or asked a question of, his/her respective officer in charge at some point, but these individuals did not cause the problem and they had no duty to investigate their superiors (Note: based on the evidence before me there is also a possibility that Staff Sgt. Lang was at the desk when Matthew Gonzalez arrived but this cannot be determined.)

[74] It also does not appear as if there were any standardized procedures to adequately track and communicate the details of any 'call a friend or relative' release. It would be helpful especially on the 'soon as practicable' front if procedures involved keeping a record of ongoing efforts such as: details about the time of a call; content of a call; particulars about when and what was relayed to the officer in charge about the call; any follow-up instructions from the officer in charge; and tracking of whether a prospective friend or relative actually showed up when anticipated.

Conclusion

[75] As the above reasons disclose, there was no lawful reason for Ms. Lorenzo's detention past 3:08 a.m. on May 2, 2015. Instead of being released she was held until 9:20 a.m. In this six plus hours there were no circumstances that arose that interfered with the police being able to execute this release, nor with the Defendant's ability to get home in a cab in the manner she ultimately did.

[76] Given this, and given all of the circumstances that are included in the reasons above, I find that there is a s. 9 Charter breach in this case as the Defendant was arbitrarily detained and imprisoned between 3:08 a.m. and 9:20 a.m. on May 2, 2016.

[77] This case has been adjourned until July 26, 2015. At that time the Parties may make submissions about the seriousness of the breach and any other factors that they believe should be considered under s. 24(1) and s. 24(2) of the Charter, and an appropriate remedy, if any.

Released: July 12, 2016

Justice Kathryn L. Hawke