Court Information

Court: Ontario Court of Justice

Court File No.: Brampton 15-6128

Date: November 17, 2016

Before: Justice W.J. Blacklock

Heard: October 31, 2016

Reasons for Judgment Released: November 17, 2016

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

John Carreau

Counsel:

• M. Michaud, for the Crown
• A. Little, for the defendant John Carreau

Judgment

BLACKLOCK J.:

I. Introduction

[1] I have before me Mr. John Carreau, who is charged with the offence of operating a motor vehicle over the legal limit contrary to the provisions of the Criminal Code of Canada. In this case, there is no issue that the Crown has tendered evidence which proves the essential elements of this offence beyond a reasonable doubt. The issues presented for consideration here are Charter based issues.

[2] Those matters arise out of what is alleged to be three breaches. Two of them relate to section 9, the right to be free of arbitrary detention, and one of them arises out of an alleged breach of the right to be free of unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The onus is on the defence to satisfy me of the breach of section 9, while because the search in question in this case was warrantless, the onus is on the Crown to satisfy me that it was reasonable within the meaning of section 8.

II. The Pat-Down Search and Placement in Cruiser

A. Factual Background

[3] The first allegation of a breach of section 9 relates to the fact that the investigating officer, Cst Leonardo, following the provision of what I am satisfied is a valid ASD demand, asked the accused to come back to his cruiser and placed him in the back of the cruiser for the purposes of performing the ASD test. The section 8 issue arises out of the fact that, prior to putting him in the back of the cruiser, the officer performed a pat down search on him.

[4] Cst Leonardo's involvement in this case arose initially around 10:08 pm. He was driving a ghost car when the accused passed him at a high rate of speed. Cst Leonardo estimated the speed at 95 to 100 km./hr. in a 60 km. zone. The officer then initiated a traffic stop, detected the odour of alcohol, made the ASD demand and asked the accused to accompany him back to the cruiser. Mr Carreau complied and before placing the accused in the cruiser, the officer conducted the pat down in issue.

B. Placement in Cruiser — Section 9 Analysis

[5] It is argued that R. v. Aucoin 2012 SCC 66 is authority for the proposition that it is a breach of section 9 of the Charter to have placed the accused in the back of the cruiser.

[6] I would observe that Aucoin supra was not a case about the reasonable necessity of placing an investigatee in the back of the cruiser for the purpose of performing an ASD test. Rather, it was about the reasonable necessity of placing the accused person in that case in the back of the cruiser merely to write up a Provincial offence ticket.

[7] The standard ASD demand itself contemplates that the accused can be asked to accompany the officer for the purposes of providing the roadside sample. In this case, I think the decision to remove the accused from the vehicle was reasonable. In this case, there was reason to believe that the target of the demand was functioning under the influence of an intoxicant. Certainly, in the type of stop here, it makes sense to remove the investigatee from his car. This was initially an HTA speeding stop. The officer was not part of an organized RIDE program. He was alone. At least in that setting it makes sense for the driver to be asked to exit the vehicle to avoid any temptation to attempt to flee while the officer gets the ASD. Even if the officer were to seize the keys in the ignition, the officer has no guarantee that the accused does not have a second set on his person or in the car. Furthermore, it would be reasonable for the officer as part of his stop to want to see the accused walk as part of sobriety testing or so as to confirm the odour of alcohol which he believed he had detected on the accused's breath while seated in the car.

[8] It can moreover be a danger for the officer to attempt to administer the ASD test at the roadside. In this case, the stop was said to be one that arose in an area where there was other traffic. It was said to be foggy. The officer noted the tendency of other vehicles to be drawn to the lights.

[9] I am satisfied that, at least, in the circumstances of this investigation, it was reasonably necessary assuming, without deciding, that to be the correct test to ask the accused to exit the car and to come back to the safe environment represented by the cruiser to administer the ASD test.

[10] Mr. Little argues, however, that the officer could have administered the test on the rear passenger's side with the door open. I agree the officer might have decided to take that approach here. Mr. Little argues, moreover, that placing the accused in the confined and locked rear of the cruiser was to give rise to a detention of a different order and this action was a breach of section 9. I am not satisfied that this is the case.

[11] The accused in the case before me was, like it or not, in a state of lawful detention pursuant to the Code provisions relating to the provision of a roadside sample when he was taken back to the cruiser. I am not sure that the distinction between administering the test with the back door open or closed in this particular context should truly be seen as one of constitutional significance.

[12] There are pluses and minuses to performing the ASD test with the door open. In some environments where the participants are in a more remote setting, this can perhaps be done without raising other issues. On the other hand, this particular stop occurred in a place and at a time when there was pedestrian traffic in the area. To provide a level of privacy for the accused and the officer so that they can both focus clearly on the task at hand without distraction or concern, it makes some sense to perform the test inside the cruiser as opposed to facing and being in proximity to other pedestrian traffic. The accused himself in this case articulated from the box that he thought this was the professional approach and he preferred the privacy of performing the test in the back of the cruiser.

[13] I am not satisfied that placing the accused in the back of the cruiser and shutting the door was, certainly in this case, a breach of section 9.

C. Pat-Down Search — Section 8 Analysis

[14] Turning to the pat down search, in order for this search to have been reasonable it must be lawful. The only basis for this search in law is as an adjunct to the state of investigative detention that the accused was in by virtue of the lawful ASD demand and potential safety issues.

[15] It is of interest to note that in footnote 3 to the decision in R. v. Aucoin supra Justice Moldaver for the majority says this:

[3] In light of this fact, I need not consider, as the respondent has urged, whether a police officer may always — that is, even in the absence of any specific information of a potential threat to the officer or the detainee — conduct a pat-down search as a prelude to lawfully securing the detainee in the rear of a police cruiser (R.F., at paras. 20, 46 and 50-51). By the same token, had the decision to secure the appellant in the cruiser been lawful, I should not be taken as endorsing the minority's view that the police required "reasonable grounds" to believe officer or detainee safety was at risk in order to pat him down (para. 39).

[16] Notwithstanding any inferences that might be drawn from this note, the bulk of authorities binding on me would appear to indicate that the mere fact that a person is in state of investigative detention does not, itself, entitle the officer to conduct a pat down search. It is lawful for an officer to do so in some circumstances but only when there is a reasonable basis to believe that the officer's safety is "at stake".

[17] It was argued that this test, which comes from R. v. McDonald 2014 SCC 3, involves a higher test than that articulated earlier by the Supreme Court of Canada in R. v. Mann 2004 SCC 52, where it was said that the test is whether or not there is a reasonable basis to believe the officer's safety is "at risk".

[18] I am not now satisfied that there is any difference in the test to be applied. It seems to me that if an officer's safety is "at risk" within the meaning of Mann supra, it is "at stake". Fortunately, I do not feel I need to make that determination in this case to dispose of the litigation before me.

[19] One of the problems in this area is the harsh reality that officers safety is, in a sense, virtually always "at stake" or "at risk" when they are interacting with people in close quarters who they are investigating for crime and who they know little about. Nonetheless, in Canada, that generalized sense of officer safety has not been seen to be sufficient to justify pat down searches on those who are in a state of investigative detention. That determination has been made and I need not rethink it. I also agree however with the Crown that in assessing the reasonableness of a search based on officer or investigatee safety, all the circumstances should be considered, not just what is known about the investigatee themselves.

[20] Here I am confronted with something of a dilemma. Cst. Leonardo gave evidence that he sometimes pats people down before he puts them in the back of the cruiser and sometimes he doesn't. He says, in essence, that he relies on his gut. He could not really explain why he chose to do this in some cases and not in others. He testified that he should do it in all cases and talked of one instance in which he did not and the investigatee in that instance, themselves, asked him why he had not done so and told him he should have.

[21] I accept that there are some level of safety concerns that arise in this setting. Once the person being investigated is in the back of the cruiser and the officer is preparing for the ASD test in the front, his attention is easily distracted from the person in the back, giving them the opportunity to access any weapon or implement they have on their person. The provision of the ASD through the screen exposes the officer's arm and veins to the person in the back. They may also, when intoxicated and being investigated for a crime, endeavor to injure themselves. On the other hand, in the interest of law enforcement, we have already empowered officers to stop persons without grounds to do sobriety checks. To then go further and permit the officer to take the drivers originally stopped without any grounds back to the cruiser and, simply because of the fact that there is a basis to suspect that they have alcohol in their body, authorize a pat down search in all circumstances whenever an officer decides to place the driver in his cruiser, seems to me to largely undercut the policy decision already made by the Supreme Court of Canada that weapons searches do not automatically follow from an individual being placed in a state of investigative detention.

[22] I am not satisfied that a pat down would never be justifiable in this setting. For example, if the accused had conducted himself in a belligerent, obstructive, obstreperous way or was emotionally distraught or behaving in an otherwise erratic fashion or if the officer was aware of any relevant background of the accused, those types of considerations coupled with the setting and the types of concerns discussed by Cst. Leonardo might justify a pat down. If there is none of this and yet the officer still has safety concerns about losing immediate physical control and observation of the accused by putting them in the enclosed back of the cruiser, then they could potentially adopt the approach of having them give the sample sitting out the back passenger door so as to not lose contact with and sight of the investigatee.

[23] In this case, the accused had been cooperative. He was not behaving erratically and the officer knew nothing of his background. I have come to the conclusion that I have not been satisfied that Cst Leonardo had a basis to do a pat down of the accused before performing the ASD. That being the case, based on my best reading of the authorities that govern me, the pat down in this case was unlawful and thus unreasonable in the context of this case and amounted to a breach of section 8.

D. Section 24(2) — Exclusion of Evidence

[24] Under 24(2) of the Charter, however, I would not be prepared to exclude any evidence in this case as a result of this breach.

[25] The onus is on the defence to satisfy me that such an action is more likely than not necessary to prevent the administration of justice being brought into disrepute.

[26] The pat down in this case was done out of good faith concerns. It was also not overly intrusive and was momentary in duration. It did not itself lead to the finding of any evidence in this case. The officer still had every basis to conduct the ASD test. There is no basis to think that the subsequent fail was anything but reliable. To set off a cascade of remedies under 24(2) resulting from the exclusion of the subsequent failure on the ASD would be a completely excessive remedy, which would itself bring the administration of justice into disrepute.

III. The Overholding Issue

A. Introduction

[27] I will now turn to the last point, namely what has come to be known as the overholding argument.

[28] It is argued that the accused in this case was held past the point he should have been released by about 4 hours. It is said that his right to be free of arbitrary detention has as a result been breached.

B. Available Remedies

[29] The defence has two sources of potential remedy available to it on this issue, assuming for the moment a breach of section 9 is established. If the accused can satisfy the court that it is just and appropriate, a stay could be imposed under section 24(1) of the Charter. Alternatively, relief against features of the sentence can also be fashioned under that provision.

[30] The second potential remedy is an exclusion of evidence. This remedy is however only available under section 24(2). Here, the onus is on the accused to satisfy the court that the evidence sought to be excluded firstly has been "obtained in a manner" that "infringed or denied" the rights guaranteed under the Charter. In addition, if they overcome this hurdle, they must then go on satisfy the court on the balance of probabilities that the admission of the evidence in question would bring the administration of justice into disrepute.

C. Breach of Section 9

[31] Let me turn first to the issue of breach.

[32] As mentioned above, the accused had originally been stopped for speeding shortly after 10:08 pm. Speeds were estimated at between 95 and 100 in a 60. The stop morphed into a drinking driving investigation after Cst Leonardo detected the odour of alcohol on the accused's breath.

[33] After the accused failed on the ASD, the accused was taken back to the station and ultimately provided two samples of his breath. These resulted in a reading of 124 mg in 100 ml of blood at 11:38 pm and 123 mg in 100 ml of blood at midnight. There had been no clear indicia of impairment noted by any officer at least until the accused was in the process of being initially considered for release by the first staff Sgt to deal with him in this regard, namely Sgt Burton. Even then, it was something only Cst Leonardo recalled in the box, namely the accused seemed to have a minor problem with putting on one of his shoes. Having spoken to the accused for what is admittedly a short period at approximately 12:20, the Sgt formed the view that the accused was not understanding the release documents. Sgt Burton said he was also aware of Mr Carreau's readings and having inquired, he knew that he had no one who could come to pick him up, as his wife did not have a license. Burton's primary concern appears to have been the accused's lack of understanding as to his obligations under his release documents, although Burton testified other factors, including his readings, the surroundings of the station and the fact that he had no one to pick him up, were "considerations" for him as well.

[34] Cst Leonardo testified that Sgt Burton mentioned he was going to hold the accused for an hour and reassess him at that point. Sgt Burton had no note of this last comment but he conceded that this was something he would likely have said. The fact that he was going to take this approach either was not, effectively passed on to Sgt McAlpine, who Burton had temporarily relieved or Sgt McAlpine simply lost track of it. Sgt McAlpine indicated he knew that the accused had been held and why but he then merely relied on the observations of the cells officers and awaited a request from them before he had the accused brought before him later for release. I have no evidence from any cells officer but the accused testified and his evidence was that while officers passed his cell and may have looked in, they at no time spoke to him or attempted to assess his sobriety. I am prepared on this record to accept that.

[35] The accused was not released then until approximately 4 hours after Burton made the initial decision to hold him for a period of time.

[36] On that record, I am prepared for the purposes of determining guilt or innocence to assume that there has been a breach of section 9. If one looks at Cst Leonardo's evidence and Burton's evidence, neither of them were overly concerned about the accused's safety or with his likely repetition of the offence. While on Burton's evidence those factors remained "considerations", his primary concern related to the accused's ability to understand his obligations if released on a promise to appear. Given the placement of the onus on this issue I find that I am not satisfied, when all the circumstances were considered, and having seen the accused testify, that there was not a basis for Burton to hold the accused for a further hour so that this concern could be re-addressed.

[37] I am prepared, however, to assume for the purposes of the determination I must currently make that holding the accused for something approaching three hours passed that point in time without any concerted effort to determine his level of sobriety and understanding, converted his lawful detention into an unlawful, and thus, an arbitrary one.

D. Stay of Proceedings Under Section 24(1)

[38] The next question at this stage is whether this conclusion should result in a stay or an exclusion of evidence.

[39] I am not satisfied that this case meets the criteria of the clearest of cases so as to justify the imposition of a stay.

[40] The accused had no one to pick him up. I am satisfied that it is likely that he was responding to Burton's questions in a way that could have led Burton to conclude that the accused did not understand his obligations pursuant to a promise to appear. That, along with all the other circumstances, led the officer to the conclusion that he should be held for an hour. The defence has not satisfied me that that conclusion was not within the zone of reasonable. Then, however, through a lack of communication and reliance on cells officers who may not even have known of the approach Burton intended to take, nothing meaningful happened until the process of release began anew some hours later.

[41] None of that is appropriate. It does not, however, make this case one of the clearest of cases justifying the extreme remedy of a stay.

[42] A review of the authorities suggests that stays have only been granted in these kinds of cases when there has been a more material delay than that which arose in this case or other aggravating circumstances are present. The first hour was as I said within the zone of reasonable. Once the process of release was again begun that itself would have taken some time. So the actual overholding here which I am satisfied was inappropriate was probably no more than about 2 and ¾ hours. There is no suggestion here that the accused was otherwise denied any request he made, such as one for food or a blanket. There is no suggestion he was strip searched. In addition, here at least Burton was directing his mind to the types of considerations that would have made the continuing detention initially lawful: see R. v. Price 2010 ONSC 1898 para 93, Ont SC leave to appeal refused 2010 OJ No 3258 Ont CA section 498 (1.1) Criminal Code of Canada. Several fact patterns can be found in the cases that are worse than the one before me and yet the courts have refused to grant the remedy of a stay in the past: see in that regard R. v. Price supra, R. v. Sapusak 1998 OJ 3299 Ont Ct of Justice Gen Div affirmed 1998 OJ No 4148 Ont CA and R. v. Iseler. In addition, quite recently in this very jurisdiction my brother Justice Schreck reaffirmed in a case that is I think no worse than this one that the overholding which had occurred there did not meet the clearest of cases test so as to justify a stay. See R v Cheema [2016] O.J. No. 1787 para 28-31.

E. Exclusion of Evidence Under Section 24(2)

[43] I will now turn to a consideration of section 24(2) of the Charter and the remedy which was the defence's primary focus in this case, namely the exclusion of the readings.

[44] The first issue here is whether it can be said that the evidence sought to be excluded was "obtained in a manner" that involved a Charter breach. The Ontario Court of Appeal in R. v. Pino 2016 ONCA 389 appears to have broadened the circumstances under which it is open to a court to find that evidence was "obtained in a manner" involving a Charter breach. Moreover, my sister Justice Hawke of this court has found, in a very carefully considered opinion, that the principles articulated in Pino supra can be applied to result in the exclusion of the breath readings in an overholding situation in R. v. Lorenzo unreported decision released October 18, 2016 (Ont CJ).

[45] It is with great hesitation that I have come to the conclusion that I differ with her. This is not because I am clearly satisfied that anything she has said is wrong in her interpretation. In fact, she may well be proven to be correct. I just do not think it is open to me to conclude that Pino supra should be taken as overruling the analysis of earlier Court of Appeal decisions that point in the opposite direction in the precise context before me.

[46] Prior to Pino, in at least two cases decided, as I said in this precise context, our Court of Appeal declined to provide any remedy by way of evidentiary exclusion: see R. v. Iseler supra and R. v. Sapusak supra.

[47] In both cases, the Court of Appeal held that there was no 'causal or temporal" connection between the obtaining of the samples and the overholding. In Iseler supra, the Court of Appeal also specifically noted that the collection of the evidence in relation to the prosecution was in fact complete prior to any breach arising.

[48] I recognize that the applicable test in Pino supra is now somewhat broader than causal or temporal connection, but those items remain factors to consider even under the Pino test. I would also observe that in Pino supra the officers involved in the seizure of the evidence in question also were involved in the gun point take down which was found to be unreasonable, and in the inappropriate delay in facilitating access to counsel. As a result in Pino supra, it can be said that there were meaningful breaches of the Charter both before and after the discovery of the evidence in question. Finally, the officers in Pino can be seen as still being actively engaged in the gathering of evidence phase of the investigation while some of the breaches established in that case were occurring.

[49] I concede that it may well be that in the final analysis none of these distinguishing features will be seen by an appellate court as significant. They may conclude that the approach articulated in Pino supra is inconsistent with the approach taken in Iseler supra and Sapusak supra. Nonetheless, given what I believe is my obligation to attempt to read binding appellate authorities together, if possible, the circumstances in Pino supra are such that I think it is conceivable that an appellate court will see Pino supra as involving a distinguishable situation from the situation in Iseler supra, Sapusak supra and the one before me.

[50] That being the case, I believe I remain bound to conclude that the samples in this case cannot be said to have been "obtained in a manner" that infringed section 9 and as a result, there is no basis to consider the exclusion of those samples in this case.

IV. Conclusion

[51] That being so, the evidence before me is such that it establishes the elements of this offence beyond a reasonable doubt. Consequently there will be a finding of guilt.

[52] I am prepared to hear counsel further on the question of whether or not it would be appropriate to make a finding of a section 9 breach on the basis of overholding that should give rise to a remedy on the issue of sentence.

Released: November 17, 2016

Signed: Justice W.J. Blacklock