Court Information

Date: 2017-09-19

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Garry Poon

Before: Justice M. Greene

Reasons for Judgment released on: September 19, 2017

Counsel:

• F. Bartley, for the Crown
• A. Little, for the Defendant

Judgment

Greene J.:

Facts and Circumstances

[1] On April 27, 2016 Officer Terriss and P.C. Choe responded to a radio call in relation to a motor vehicle stopped on the shoulder of the 401 highway at Victoria Park. According to P.C. Terriss, they arrived on scene at approximately 1:02 a.m. P.C. Choe testified that they arrived five minutes later, at approximately 1:07 a.m.

[2] Upon their arrival, they walked over to the stopped vehicle. Officer Terriss approached the driver's side door and noticed a single male in the vehicle. The male was in the driver's seat and appeared to be asleep. P.C. Terriss also noticed that the keys were in the ignition, pointed in the "on" position.

[3] P.C. Terriss tapped on the driver's side window but the male, later identified as Mr. Poon, did not respond. Concerned for Mr. Poon's safety, the officer then opened the driver's side door. This is when Mr. Poon woke up.

[4] According to P.C. Terriss, upon awaking, Mr. Poon appeared confused and the officer asked him if he was alright. Mr. Poon responded that he was just resting and waiting for a friend. At this point the officer noticed an odor of alcohol coming from Mr. Poon's breath. P.C. Terriss further noticed that Mr. Poon's eyes were glassy and he was unable to focus on the officer. P.C. Terriss asked Mr. Poon where he was. Mr. Poon paused for a few seconds and then replied that he was on the highway. Mr. Poon was unable to state what part of the highway he was on. Mr. Poon then admitted to having consumed one beer at approximately midnight.

[5] P.C. Terriss asked Mr. Poon for his driver's license. Mr. Poon opened his wallet and provided the officer with a black Cineplex card instead of driver's license. At this point, P.C. Terriss turned to his partner and stated that Mr. Poon looked "gooned". By this he meant that Mr. Poon was impaired by alcohol. At 1:08 a.m., satisfied that he had reasonable and probable grounds to believe that Mr. Poon's ability to operate a motor vehicle was impaired by alcohol, P.C. Terriss arrested Mr. Poon. Mr. Poon was read his right to counsel, was cautioned and subjected to a pat down search.

[6] Mr. Poon advised the officer that he did not want to speak to a lawyer and that he "slept at the side of the road because I was tired".

[7] The breath demand was read to Mr. Poon. Mr. Poon advised the officer that he understood. He was then placed in P.C. Lindsay's police vehicle and driven to the police station.

[8] P.C. Terriss testified that once out of his own vehicle, Mr. Poon appeared to be steady on his feet, was not slurring his speech, no longer appeared to be confused, and was able to walk without any problem. Similarly, while at the police station, Mr. Poon did not slur his speech, was no longer confused and had no difficulty walking and responding to the officers.

[9] Upon arriving at the detachment, Mr. Poon was frisk searched again and duty counsel was called at Mr. Poon's request. Mr. Poon was then put in a cell to await a response from duty counsel. He was placed in the cell sometime between 1:34 and 1:43 a.m. and was removed from the cell at 2:00 when duty counsel called back.

[10] After speaking to duty counsel, Mr. Poon was placed in a room with the breath technician to conduct the breath tests.

[11] P.C. Ennis, the qualified breath technician involved in this case testified at trial. According to P.C. Ennis, Mr. Poon attended before him at 2:04 am. Mr. Poon was afforded a number of opportunities to provide a sample of his breath into the Intoxilyzer 8000C but failed to provide a suitable sample. During the first attempt, Mr. Poon was instructed to blow into the mouth piece. According to P.C. Ennis, once air enters the mouthpiece and goes into the machine, the machine releases a tone. In the case at bar, when Mr. Poon blew into the mouthpiece, no sound emanated from the machine at all. This caused P.C. Ennis to conclude that Mr. Poon was not breathing into the mouthpiece.

P.C. Ennis cautioned Mr. Poon about failing to provide a breath sample and then demonstrated how to provide a suitable sample. He started a new test sequence, provided Mr. Poon with a new mouthpiece and asked him to blow into the mouthpiece. After being satisfied that there was no obstruction in this new mouthpiece, Mr. Poon was instructed to provide a breath sample. Again the machine did not make any sound, which meant that again, no air was entering the machine. According to P.C. Ennis, Mr. Poon put the mouthpiece in his mouth, closed his eyes and swayed back and forth but did not blow out any air.

[12] P.C. Ennis demonstrated again how to provide a suitable sample into the Intoxilyzer 8000C and cautioned Mr. Poon again about failing to provide a suitable sample. Mr. Poon was provided a new mouth piece and given another opportunity to provide a sample. Again no tone sounded indicating to P.C. Ennis that Mr. Poon was not blowing into the machine. P.C. Ennis knew the machine was in proper working order as he had provided four suitable samples himself that night into the machine. As a result, P.C. Ennis charged Mr. Poon with failing to provide a sample.

[13] The video of what took place in the breath room was played at trial. It confirmed that Mr. Poon was provided three opportunities to provide a sample but failed to do so.

During each test attempt the officer just held the mouthpiece while Mr. Poon was given a chance to blow. He rarely provided any guidance and did not, for the most part, instruct him to blow harder when no sound emanated from the machine.

[14] At 3:02 am, Mr. Poon was returned to P.C. Terriss's custody and charged with failing to provide a breath sample. Mr. Poon was printed at 3:49 a.m. and released at 4:26 a.m.

[15] Mr. Poon testified at trial. According to Mr. Poon he was not impaired by alcohol on the night in question. He had been with some friends at a restaurant on Ossington Avenue where he consumed some food, a tall boy of beer and one shot of Soju. Mr. Poon testified that he left the restaurant on 11:00 p.m. and drove his friend home. Mr. Poon did not feel impaired at the time. After dropping his friend at home, Mr. Poon proceeded to drive home. He had to take the 401 to get to his residence. While on the 401, Mr. Poon started to feel very tired. He decided that it was best if he pulled over and had a short nap before continuing home. Mr. Poon testified that he used to travel on the 401 a lot and whenever he felt too tired to drive, he would pull over and take a nap. The next thing Mr. Poon recalled was the officer waking him up.

[16] In relation to the refusing to provide a sample, Mr. Poon testified that he made good faith efforts to provide a sample of his breath. He did not intentionally fail to provide a sample and he had no motive to refuse to provide a sample as he knew that he was not impaired.

Issues Raised at Trial

[17] In the case at bar, counsel for Mr. Poon conceded that Mr. Poon was in care and control of his motor vehicle. He argued, however, that Mr. Poon's ability to operate a motor vehicle was not impaired by alcohol and that the Crown had not proven beyond a reasonable doubt that Mr. Poon refused to provide a breath sample.

[18] In addition to arguing that the Crown had not made out the essential elements of the offences, counsel further argued that the police violated Mr. Poon's rights as guaranteed by section 10(a), 9, 8 and 7 of the Charter. He argued that as a result of these violations, the observations of Mr. Poon at the police station should be excluded from evidence at his trial.

[19] Crown counsel argued that the police did not violate any of Mr. Poon's charter rights. He further argued that both offences were proven beyond a reasonable doubt.

Charter Analysis

Section 7 of the Charter - Lost Evidence

[20] P.C. Terriss, a new police officer, arrested Mr. Poon for being in care and control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol. P.C. Terriss used his police memo book during the course of his testimony at trial to assist him in refreshing his memory. The notes in his memo book were not made until sometime after the arrest while P.C. Terriss was at the police station. P.C. Terriss was questioned at length about whether or not he made rough notes while at the roadside on scrap pieces of paper. P.C. Terriss testified that he had no recollection of making rough notes and that if he had made them, he knew that they were to be attached to his memo book and disclosed to the defence. No such notes were attached to his memo book notes and he could not locate any rough notes in his personal materials. P.C. Terriss conceded, however, that despite the lack of rough notes attached to his memo book and despite his lack of memory of ever making such notes, he must have made them because his memo book included details that he would only have been able to record if he had made rough notes at the roadside. P.C. Terriss was therefore willing to concede that he had made rough notes and that those rough notes were lost.

[21] Counsel for Mr. Poon argued that the state violated Mr. Poon's rights as guaranteed by section 7 of Charter by failing to preserve and disclose the rough notes made by P.C. Terriss. Crown counsel argued that it was mere speculation that there were any rough notes made by P.C. Terriss and as such there is no basis to conclude that any notes were lost.

[22] I am satisfied that P.C. Terriss made rough notes at the scene that he later copied into his memo book and that these rough notes are lost. I reach this conclusion based solely on P.C. Terriss's evidence which I completely accept on this point. P.C. Terriss testified that he had no recollection of making rough notes but he nonetheless conceded that he must have made rough notes. P.C. Terriss accepted that given the level of detail in his notes, the only inference that could be drawn was that he made rough notes while at the roadside and that these rough notes have now been lost. As P.C. Terriss had no recollection of making the notes, it is unclear at what stage they were lost or by whom. In light of this finding of fact, this court must consider whether the lost evidence violates Mr. Poon's right to full disclosure.

[23] It is trite law that the Crown has an obligation to preserve and disclose all evidence that is not clearly irrelevant. Section 7 of the Charter will only be violated where the missing evidence was lost due to unacceptable negligence or if the evidence was destroyed maliciously. There will be occasions where the evidence was lost due to an error that does not amount to an abuse of process or negligence. In such situations, section 7 will only be violated where the loss of the evidence impacts the defendant's ability to make full answer and defence.

[24] There is no evidence in the case at bar that P.C. Terriss or any other officer intentionally destroyed the notes or that there was an abuse of process. Instead, counsel argued that the notes were lost due to the officer's unacceptable negligence in not taking due care with his rough notes. I agree, that there is some evidence of negligence in the case at bar. While it is unknown how the notes were lost, the fact that they were lost in my view is sufficient evidence that someone did not take due care and responsibility with these notes. Officers are required to take care with all their notes so that full disclosure can be made to the defence. In failing to take adequate care in retaining these notes, I am satisfied that the officer's conduct was below the level of care required when dealing with police notes. I therefore find a section 7 breach.

[25] The issue then turns to remedy. Counsel for Mr. Poon conceded that the breach here is not sufficiently serious to justify a remedy under section 24(1) of the Charter. Instead he argued that the breach should be considered under section 24(2) of the Charter, if the court finds other charter breaches. I agree. I note that at the time of the offence, P.C. Terriss was still a new police officer. It was clear during his testimony that he fully understands his obligation to retain his rough notes and did not attempt to make excuses for the lost notes. Moreover, while the concern always arises that P.C. Terriss did not record his notes accurately in his memo book from the rough notes, there appears to be no clear prejudice to Mr. Poon by these lost notes as a second officer, who also testified at trial, was present during all of P.C. Terriss's interactions with Mr. Poon while at the roadside and his notes were disclosed.

Section 8 of the Charter

[26] Counsel for Mr. Poon argued that the police violated Mr. Poon's section 8 Charter rights when P.C. Terriss opened the driver's door to Mr. Poon's vehicle. Crown counsel argued that opening the car door did not amount to a search such that section 8 of the Charter is engaged. In the alternative, if the court were to find that opening the door was a search, the search was lawful since the purpose of the search was to ensure the safety of Mr. Poon.

(i) Is section 8 engaged when an officer opens the door of a vehicle?

[27] In R. v. McDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, the Supreme Court of Canada held that pushing the door of a residence so that the officer could better see the occupant of the residence constituted an invasion of his privacy so as to engage section 8 of the Charter (see para 28 of R. v. McDonald, supra).

[28] In R. v. Thomas, [2014] A.J. No. 834 (Alta.prov.crt), the trial judge held that there is no qualitative difference between opening the door of a vehicle and opening the door of a residence. As such, the trial judge held that when the officers opened Mr. Thomas' truck door they were engaged in a search. Similar conclusions were reached in R. v. Bissonnette, [2001] O.J. No. 3737 (SCJ) and R. v. Anderson, [2010] A.J. No. 1226.

[29] I appreciate that there is a reduced expectation of privacy in a motor vehicle. Having said that, the ordinary person does retain some expectation of privacy in his/her motor vehicle. I agree the decision of R. v. Thomas, supra, that there is no qualitative difference between a house and vehicle or policy reason to justify treating a vehicle different than a residence for the purpose of determining whether section 8 is engaged. As such, I am satisfied that Mr. Poon had a reasonable expectation of privacy in his vehicle and that opening the door of his vehicle constituted a search in law.

(ii) Was the search lawful?

[30] In the case at bar, counsel for Mr. Poon argued that P.C. Terriss had no lawful authority to open the door to Mr. Poon's vehicle and as such he violated Mr. Poon's section 8 rights. Counsel for Mr. Poon argued that the officer had a duty to check on Mr. Poon's well-being and as a result was permitted to open the door to confirm that Mr. Poon was safe.

[31] In assessing the scope of police powers, the court is guided by the analysis in R. v. Waterfield, [1963] 3 All.E.R. 659 (CCA). Pursuant to Waterfield, the court must first ask whether the exercise of police power under review falls within the general scope of a police duty imposed by statute or common law. If the answer to this question is yes, the court must consider whether the exercise of the police power under review constitutes a justifiable exercise of powers associated with that duty (see also R. v. Godoy, [1999] 1 S.C.R. 311, at para. 12).

[32] In relation to the second stage of the analysis, the court must consider the nature of the duty being performed, the extent to which some interference with individual liberty is necessary in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. The Supreme Court of Canada, in applying these factors in R. v. Godoy, supra, held that "it was necessary for the police to enter the appellant's apartment in order to determine the nature of the distress call. There was no other reasonable alternative to ensure that the disconnected caller received the necessary assistance in a timely manner." (see para 18).

[33] The facts in the case at bar are different in many respects to that of Godoy. Mr. Poon did not call 911. The officers' could see Mr. Poon in his car when they arrived and this was not a hang up call to 911.

[34] There are, however, some relevant similarities. In Godoy the court held that the officers have a duty to respond to distress calls and assist people. I have no difficulty concluding that in opening the door to Mr. Poon's vehicle the officers were interested in determining whether Mr. Poon was safe. He appeared to be passed out on the side of the road and did not respond to the tapping on the window. Both officers testified about their concern for his safety and I accept their evidence on this point.

[35] In my view, concern for Mr. Poon's safety and taking steps to ensure that he is safe, falls squarely within an officer's duty to protect the public, a very important police duty. In relation to the second prong of the analysis, while I appreciate that the officers could have knocked a few more times before opening the door, the interference with Mr. Poon's privacy was nominal and opening the door was the quickest way to determine the state of Mr. Poon's health. Moreover, I note that the officer only opened the door, he did not make any attempt to otherwise search the vehicle. Furthermore, as noted above, protecting the public is an important police duty. I therefore find that it was a justifiable exercise of their powers associated with the duty of protecting the public.

[36] When I consider all the evidence, I find that the officers were acting within their lawful authority to open the door of the vehicle for the purpose of ensuring that Mr. Poon was alright and not in need of urgent medical attention.

[37] I therefore find no violation of section 8 of the Charter.

Section 10(a) of the Charter - Right to Counsel and Reason for Detention

[38] In the case at bar, Mr. Poon was arrested somewhere between one to five minutes after the police arrived. Counsel for Mr. Poon argued that Mr. Poon was detained by the police the moment they detected an odor of alcohol emanating from his breath. Counsel for Poon further argued that since Mr. Poon was detained, the police were required to advise him of the reason for his detention. Since the police failed to do this, Mr. Poon's counsel argued that Mr. Poon's section 10(a) rights were violated. Crown counsel argued that Mr. Poon was not detained and as such the police were not required to comply with section 10(a) of the Charter.

[39] According to P.C. Terriss, upon arriving on scene, his intention was to investigate Mr. Poon's health. Once Mr. Poon awoke and P.C. Terriss detected an odor of alcohol of Mr. Poon's breath, P.C. Terriss started an impaired driving investigation. At this point Mr. Poon was asked if he had consumed any alcohol that night and the police asked him for his license. Both P.C. Terriss and P.C. Choe testified that Mr. Poon was not detained at this point in time. They also testified, however, that Mr. Poon was not free to leave and that had he tried to leave, they would have stopped him. Moreover, Mr. Poon was in his vehicle with an officer on either side of him and he was required to provide them with his license once they asked for it. In my view, given the admission by the officers that, upon detecting alcohol on Mr. Poon's breath, he was not free to leave, the location of the officers and the directed nature of their questions, once the officer's detected alcohol on his breath, Mr. Poon was detained. If one is not free to leave, and not able to leave because the officers are on either side of his vehicle, then that person is detained. I further find that, as the officers were engaging in a criminal investigation into whether or not Mr. Poon was in care and control of his motor vehicle while impaired by alcohol, they were required to advise him of the reason for his detention. The question remains whether the officers were required to advise Mr. Poon of the reason for his detention.

[40] It is well accepted that a person must be advised of the reason for their detention immediately upon being detained (R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.)). In R. v. Kumarasamy (2011), 2011 ONSC 1385, 15 M.V.R. (6th) 44 (Ont. S.C.J.), Justice Dambrot held that despite an officer's failure to advise a detainee of the reason for the detention, section 10(a) of the Charter will not be violated where it is obvious to the detainee why they are being detained. In R. v. Evans, [2015] O.J. No. 2907 (O.C.J) and R. v. Cole, 2017 ONCJ 83, [2017] O.J. No. 977 (OCJ), the reasoning in Kumarasamy was rejected.

[41] In R. v. Evans, Justice Stribopolous found that he was not bound by the decision in Kumarasamy despite the fact that it is a summary conviction appeal judgment because the decision was inconsistent with the Supreme Court of Canada decision in R. v. Borden, [1994] 3 S.C.R. 145. Justice Stribopolous wrote,

In finding that the accused's section 8, 10(a), and 10(b) rights were violated in Borden, the Supreme Court specifically rejected the Crown's argument that because the accused had perpetrated the second sexual assault, he would have known his blood sample could have been used to link him to that offence and therefore his consent to the giving of his blood would have been informed. In rejecting this argument, Iacobucci J. for the majority, noted:

"As my colleague Sopinka J. pointed out at the hearing of this appeal, the logical extension of this argument would be that the protection afforded by the Charter no longer apply whenever the person arrested is guilty of the offence for which he or she has been detained. Also inherent in this line of argument is the unfairness of relying on the results of evidence whose admissibility is in dispute to support the contention that the respondent's rights were not violated.

[42] Justice Schreck made a similar finding in R. v. Cole, supra. Justice Schreck wrote at paragraph 26,

In my view, I am bound to follow a summary conviction appeal court judgment, but only if there is no conflicting authority from a court of an equal or higher level. R. v. Roberts (1989), 16 M.V.R. (2d) 79 (Ont.P.C.), and R. v. Richards (1993), 12 OR. (3d) 260 (P.C.), at para 21. The reasoning in Kumarasamy is, in my view, inconsistent with paragraph 37 of Borden. While Kumarasamy is binding, Borden is more binding.

[43] I agree with Justice Schreck and Justice Stribopoulos that the Supreme Court of Canada in R. v. Borden rejected the notion that because an individual has engaged in a particular form of wrong doing (i.e. speeding, bad driving, etc.) they would necessarily know why they were being detained and therefore the police would be relieved of their informational duties under section 10(a). Whether or not person would have known because of nature of interaction is a relevant consideration under 24(2) but it does not obviate the need for the officers to advise the detainee of reason for detention.

[44] In my view, Mr. Poon was detained the moment the officers detected alcohol on his breath. At that point in time, the officers started an impaired driving investigation and Mr. Poon was not free to leave. At this point in time he ought to have been advised of the reason for his detention but was not. Therefore, I find that Mr. Poon's 10(a) rights were violated.

Section 9 of the Charter - Arbitrary Detention

[45] Upon arriving at the police station, Mr. Poon requested an opportunity to speak to duty counsel. While the officers telephoned duty counsel and waited for duty counsel to respond Mr. Poon was placed in a cell. P.C. Terriss could not recall the exact time that Mr. Poon was placed in a cell. He testified that it was sometime between 1:34 a.m. and 1:43 a.m. He was removed from the cell 15 to 25 minutes later when duty counsel called back at 2:00 a.m. According to all the officers that testified at trial, Mr. Poon was placed in the cell, because once he was arrested, he had to either be supervised by an officer at all times or put into a cell. This was for his safety as well as the safety of the officers.

[46] Counsel for Mr. Poon argued that placing Mr. Poon is a more restrictive form of detention than merely keeping him at the station near the booking area while waiting to speak to duty counsel. Counsel for Mr. Poon took no issue that Mr. Poon had to be supervised once he was under arrest, but argued that an officer could have remained with him in the booking area as opposed to placing Mr. Poon in a cell. Counsel for Mr. Poon argued that the only justification for placing Mr. Poon in a cell was expediency. Expediency is not a lawful justification for detention and as such the manner of the detention was unreasonable thereby violating section 9 of the Charter. Crown counsel argued that section 9 was not violated because the level of detention was required for safety purposes.

(i) Findings of Fact

[47] It is a general policy of the police not to leave an arrestee unattended. Once an arrestee is taken to the police station they must either be in the direct supervision of an officer, or be placed in a cell. In the case at bar, it was clear that neither P.C. Terriss nor P.C. Choe turned their mind to whether an officer could remain in the booking area with Mr. Poon while waiting for duty counsel as opposed to putting him in a cell. He was placed their automatically after he asked to speak to counsel without any inquiries being made about the possibility of an officer remaining with Mr. Poon in the booking area so as to avoid placing him in a cell. According to the evidence at trial, on the morning in question there was at least one officer, P.C. Lindsay, at the station whom was not doing anything and could have easily sat with Mr. Poon while he waited for duty counsel to call back thereby obviating the need to place Mr. Poon in a cell.

(ii) Does section 9 of the Charter extend to considerations about the manner of detention?

[48] In R. v. Bouchard, [2011] O.J. No. 5409 (OCJ) at para 25, Justice Fraser explored whether the manner of the detention is relevant to the section 9 analyses. He stated as follows at para 24,

Does arbitrary detention or imprisonment under s.9 encompass a lawful detention or imprisonment carried out in an unreasonable or unjustified manner? It seems that if s.9 is to receive a generous, purposive interpretation, as it should as a constitutional guarantee, then s.9 must be capable of providing oversight for lawful detention or imprisonment that is carried out in an unreasonable or unjustified manner. The Ontario Court of Appeal in R. v. Cayer (1988), 66 C.R. (3rd) 30 at 43 stated that "an arbitrary detention for the purposes of these appeals is a detention which is capricious, despotic or unjustified".

[49] Justice Fraser went on to note that that there is a qualitative difference between placing someone in a cell and detaining someone outside of a cell. He noted at paragraph 21,

Placing another human being in a cage exacts a psychological toll on both the jailed and the jailer. Ms. Bouchard's testimony in this trial provided evidence of both impacts. She testified in a compelling way about her own sense of humiliation as she sat in the cell. But, she also described the actions of a young female officer, uninvolved in her case, who passing her cell and seeing her huddles and miserable, clutching a blanket around her shoulders to hide her bra-less state, said "You look so comfortable, maybe we should keep you longer"

[50] The issue of manner of detention was considered by the Supreme Court of Canada in R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408. In that case, the Supreme Court of Canada held that the manner of detention is a relevant consideration in determining whether or not section 9 of the Charter has been violated. In determining the lawfulness of a pat down search that took place prior to placing Mr. Aucoin in the back seat of a motor vehicle, Justice Moldaver made the following comments about section 9 of the Charter at paragraph 35,

In essence, the Court here expressly reaffirms that the protection afforded by s.9 of the Charter extends beyond the question of the arbitrariness of a decision to detain per se to that of the manner of detention. "This approach" to s.9, as said in R. v. Grant 2009 SCC 32, [2009], 2 S.C.R. 353, at para.56, "mirrors the framework developed for assessing unreasonable searches and seizures under s.8 of the Charter" - - including the constitutional obligation that "the search must be carried out in a reasonable manner" (emphasis added). This is not a controversial proposition. As said in R. v. Williams, 2013 ONSC 13, at para 115, "it is well settled that, in determining whether a detention is arbitrary, not only must the grounds to detain be considered, but also the manner in which the detention is carried out".

[51] In my view, the decision in R. v. Aucoin, clearly establishes that the right not be arbitrarily detained includes a consideration of the reasons for the detention but also the manner of the detention.

(iii) Was placing Mr. Poon in a cell for 15-25 minutes in violation of section 9?

[52] It is unknown whether Mr. Poon was in the cell for 15 or for 27 minutes as P.C. Terriss could not recall if Mr. Poon was placed in the cell at 1:35 or 1:43. He could only recall with certainty that Mr. Poon was removed from the cell at 2:00 a.m.

[53] Mr. Poon did not testify on the Charter application. There is therefore no evidence about the emotional or psychological impact of being held in a cell for the 15-25 minutes, Counsel nonetheless argued that this court should conclude that there is a qualitative difference between sitting beside an officer in the booking area of the station while under arrest as opposed to sitting in a cell. Despite the absence of evidence from Mr. Poon, I have no difficulty finding that being placed in a cell is substantially different from sitting beside an officer in a police station. In my view being placed in a cell is a higher level of detention than sitting next to an officer in a police station and as such there must be some justification for placing an arrestee in a cell.

[54] I reach this conclusion for a number of reasons. Firstly, I agree with Justice Fraser's comments that placing a person in a cell does have a psychological impact on the detainee. Secondly, the court was provided with evidence about the small size of the cell, the lack of privacy with respect to the washroom and the bars and walls that surround the cell. In my view, being locked in a room as small as the cell in the case at bar is clearly very different from sitting in a more open space beside an officer while waiting for duty counsel.

[55] The next step in the analysis is whether or not this more restriction form of detention was justified. In the case at bar, the Crown argued that the officers placed Mr. Poon in a cell for safety reasons. Mr. Poon was under arrest and as a result needed to be in the constant supervision of an officer or placed in a cell. Police are very busy and they cannot be expected to use their valuable time sitting with an arrestee while waiting for duty counsel. Crown counsel further argued that Mr. Poon was placed in a cell for a very short period of time and suffered no harm as a result.

[56] In assessing whether or not placing Mr. Poon in a cell was lawful, in my view, the court must consider whether placing Mr. Poon in a cell, which altered the nature of his ongoing detention, was reasonably necessary in the totality of the circumstances (see R. v. Aucoin at para 30). There is no dispute that once arrested, the defendant was in the care of the police and the police had to ensure that Mr. Poon was safe, that he did not leave the station and that he did not put the safety of others at risk. This could be accomplished by placing him a cell or by an officer remaining with him while awaiting duty counsel's call. The officers, however, never turned their mind to the question of whether or not an officer was available to remain with Mr. Poon so that he did not have to be placed in a cell. Instead, he was immediately placed in a cell without any consideration of whether such a restrictive form of detention was necessary.

[57] It may be that given the duties of police officers that on most occasions it will be necessary to place an arrestee in a cell for brief period of time. Officers are often very busy and I have no doubt that they frequently do not have time to sit with an arrestee at the station for long periods of time. On the record before this court, however, there was direct evidence that an officer was available to sit with the very cooperative Mr. Poon and that the police did not even consider this option. In my view, the police were required to consider the least restrictive form of detention. Their failure to do so made what was otherwise a lawful detention, arbitrary and in violation of section 9 of the Charter.

Section 24(2) of the Charter - Exclusion of Evidence

[59] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) The seriousness of the Charter-infringing state conduct (admission may send a message that the justice system condones serious state misconduct)

(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) Society's interest in the adjudication of the case on its merits.

The Court's role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Seriousness of the Charter-infringing State Conduct

[60] Under this first prong of the 24(2) analysis, it is incumbent on trial judges to assess the seriousness of the violation in terms of the "gravity of the offending conduct by state authorities". The seriousness of the state-offending conduct lies along a continuum where on the one end the evidence is obtained through inadvertence or minor violations and at the other end evidence is obtained though wilful or reckless disregard for Charter rights. As was noted in R. v. Grant, supra, at paragraphs 73-74, state conduct falling on this latter side of the spectrum will "inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute".

[61] Counsel for Mr. Poon argued that the conduct involved in the case at bar is very serious because there were numerous Charter breaches. Counsel argued that the pattern of breaches establishes that the police had a blatant disregard for the Charter. Crown counsel argued that while there may be multiple breaches, each breach was trivial and as such the overall conduct was not serious.

[62] I have found three charter breaches in the case at bar. Each breach by itself is not that serious. The section 7 breach related to the conduct of a new officer who failed to preserve his rough notes. He did keep his memo book, provided it to the prosecution for disclosure, did copy his rough notes into his memo book and despite his failure to preserve his rough notes in the case at bar, the officer clearly understood his obligation and testified that he does normally preserve his notes.

[63] The breach of section 10(a) of the Charter, in my view, is slightly more serious. This is because the officers failed to appreciate that Mr. Poon was detained. The officers acknowledged that Mr. Poon was not free to leave, and were on either side of his vehicle. It should have been clear that he was detained. I note, however, that Mr. Poon was only detained for a brief period of time before his arrest and once arrested he was advised of the reasons for the arrest and given his full rights to counsel.

[64] The section 9 breach, in my view, is also not on the higher end of seriousness. There is very little case law on this point and therefore very little guidance for the police officers on the lawfulness of placing an arrestee in a cell while awaiting a call from duty counsel. I also note that the officers were not acting maliciously, and were very respectful of Mr. Poon at the station.

[65] While I have found that no breach on its own was serious, in light of the number of breaches that took place in the case at bar, it is my view that this prong militates in favour of exclusion of the evidence.

Impact of the Breach on the Charter Protected Interest of the Accused

[66] In my view the impact of the lost notes on Mr. Poon's ability to make full answer and defence is minimal and can easily be addressed by this court taking into account the lost notes when weighing P.C. Terriss's evidence. Standing alone this breach does not favour exclusion of the evidence.

[67] The section 10(a) breach cannot be viewed as trivial. As the Court of Appeal noted in R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 (CA) the impact of not knowing the reasons for one's detention can be quite significant. The court stated at para 21,

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s.10 of the charter.

[68] In the case at bar, it is unclear whether Mr. Poon was detained for one or five minutes prior to his arrest. This is because the officers' evidence on this point was inconsistent. P.C. Choe testified that they arrived on scene at 1:07 a.m. and that the arrest took place at 1:08 a.m. P.C. Terriss testified that they arrived on scene at 1:02 a.m. and arrested Mr. Poon at 1:08 a.m. In light of this inconsistent evidence, I am unable to determine with precision what time the officers arrived. There are issues with both officers' evidence on this point. P.C. Terriss testified that he must have taken rough notes of what took place that morning, in particular the time of arrival and other similar details, but his rough notes no longer exist. Did he copy the time of arrival correctly in his notes or did he make an error thus explaining the inconsistency between his evidence and that of P.C. Choe? On the other hand, it is difficult to imagine that all the steps outlined above took place in just one minute. The events that occurred between the police arriving and Mr. Poon being arrested must have taken longer than the one minute that P.C. Choe's evidence allowed. This raises real questions about the reliability of P.C. Choe's time estimate. In my view, the only fair way to proceed is to assume the facts most favourable to the defendant. The police were in the best position to note and record the time of their arrival. Their failure to do so should not work to Mr. Poon's detriment. I therefore find that he was detained for approximately five minutes prior to being arrested. I nonetheless find that the impact of the charter breach while not trivial was still minimal. Mr. Poon was detained for a very short period of time before being advised of his rights. During that time, while the officers were investigating Mr. Poon for impaired driving, their actions did not extend beyond what would take place in a normal highway traffic stop. Mr. Poon was asked to provide his license and what he was doing asleep at the side of the road. While there was obviously some impact on the interest section 10(a) was meant to protect, in my view it was minimal.

[69] In relation to the section 9 violation, Mr. Poon did not testify on the Charter application. I have no evidence about the impact of being placed in a cell for a relatively short period of time had on him. While I can take judicial notice that it would have had some impact, I am unable to conclude that there was significant impact such as to justify excluding the evidence under this prong.

[70] In my view this prong militates in favour of including the evidence.

Society's Interest in the Adjudication of the Case on its Merits

[70] In my view this prong militates strongly in favour of inclusion of the evidence. Impaired driving and refusing to provide a breath sample are serious offences. The risk of harm to member of the public by impaired drivers is dramatic. The observations of the breath technician in relation to Mr. Poon's refusal to provide a sample are reliable observations and necessary for the Crown to prove its case.

Balancing the Three Grant Factors

[71] The type of balancing required under section 24(2) of the Charter is qualitative not quantitative in nature. The balancing must consider the effect of admitting the evidence on the long term repute of the administration of justice (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494).

[72] In my view, when I balance all the factors, the actions of Mr. Poon in failing to provide a sample of his breath while at the police station ought not be excluded.

Substantive Analysis

Impaired Care and Control

[73] As noted above, counsel for Mr. Poon conceded that Mr. Poon was in care and control of his motor vehicle at the relevant time. The only issue at trial was whether Mr. Poon's ability to operate a motor vehicle was impaired by alcohol. In determining whether the crown has proven this essential element of the offence beyond a reasonable doubt, I must keep in mind that proof of impairment does not require a marked departure from normal behaviour. Any degree of impairment of the ability to operate a motor vehicle where the impairment is caused by the consumption alcohol is sufficient to make out the offence, no matter how slight the impairment (R. v. Stellato (1994), 90 C.C.C. (3d) 160 (S.C.C.) and R. v. Elvikis, [1997] O.J. No. 234 at paragraph 28).

[74] In the case at bar, Mr. Poon was found asleep in his vehicle on the shoulder of the 401. He was difficult to rouse and appeared confused when he first awoke. He had some difficulty locating his identification from his wallet and an odor of alcohol was detected on his breath. All these indicia are consistent with impairment. They are also, however, consistent with someone being very tired, choosing to pull over to take a nap and being confused when first awakened.

[75] Crown counsel argued that the above evidence coupled with the evidence that Mr. Poon had no explanation for why he suddenly became tired at the side of the road, Mr. Poon's failure to provide a breath sample and, his red eyes at the station all establish beyond a reasonable doubt that Mr. Poon's ability to operate a motor vehicle was impaired by alcohol.

[76] I agree, that one potential explanation for Mr. Poon's conduct and demeanor is that he was impaired at the time that he was in care and control of his motor vehicle. I agree with Mr. Little, however, that an equally viable alternative explanation is that Mr. Poon, as he testified at trial, consumed very little alcohol, suddenly became tired because of the late hour, pulled over to take a short nap for safety reasons and was briefly dazed after being awoken from a deep sleep. This is particularly possible given the fact that after his arrest at 1:08, no indicia of impairment, other than red eyes were observed. His speech was not slurred, he was no longer confused and his walking and motor skills appeared fine. In addition to the officers' evidence on this point, the court had the benefit of watching the Mr. Poon's demeanor and behaviour while in the breath room. No overt signs of impairment were present.

[77] I am mindful that falling asleep on the side of the road is some circumstantial evidence of impairment as it is not common to take a nap on the shoulder of the 401, but Mr. Poon testified that he pulled over because he suddenly became tired and felt this was the safest course of action. He had done it numerous times in the past and was not concerned for his safety in making this decision. He testified that he was not impaired and that his sudden feeling of being tired was not linked to alcohol consumption because he consumed so little alcohol on this night. I have no reason to reject his evidence on this point.

[78] I am also mindful that the fact that Mr. Poon refused to provide a breath sample is also a relevant factor in assessing whether the Crown has proven the offence. When I consider all the evidence, however, given the clear absence of any real indicia of impairment post arrest at the road side, and absent any evidence of how Mr. Poon was operating his motor vehicle, I am left in a reasonable doubt about whether his ability to operate a motor vehicle was impaired by alcohol.

Refusal/Failure to Provide a Breath Sample

[79] The final issue raised at trial was whether the Crown has proven beyond a reasonable doubt that Mr. Poon intentionally failed to provide a breath sample and therefore effectively refused to provide a breath sample. It was conceded by counsel for Mr. Poon that Mr. Poon did in fact fail to provide a sample. Counsel argued, however, that the Crown failed to establish beyond a reasonable doubt that Mr. Poon intentionally failed to provide a breath sample. Crown counsel argued that the Breathalyzer was in good working order and there was no obstruction in the mouth piece therefore, the only inference is that Mr. Poon intentionally failed to provide a sample.

[80] The video of what took place in the breath room was played at trial. It is clear that during all three attempts, the tone, which establishes that some air is making its way into the machine, is not heard. The only inference to be drawn from this is that no air was entering the machine. Mr. Poon testified at trial that he legitimately tried to provide a sample of his breath. Not being familiar with the machine, he was unable to explain why he was unable to do so. Crown counsel urged this court to reject Mr. Poon's testimony because it just cannot be true. Crown counsel argued that if the court accepts that the Intoxilyzer 8000C was in good working order, that one of the mouthpieces was checked and the officer confirmed that there was no obstruction in that mouth piece, then Mr. Poon's evidence must be false. This is not a case where some air entered the machine but the amount was insufficient. In the case at bar, no air entered the machine at all. Counsel for Mr. Poon argued that Mr. Poon was an honest witness and I should accept his evidence

[81] At the beginning of the testing, the breath technician gave Mr. Poon a mouth piece, but when no air came out of it when Mr. Poon blew into the mouthpiece, P.C. Ennis discarded that mouth piece and provided Mr. Poon with a new mouth piece. P.C. Ennis had Mr. Poon blow into the mouthpiece and confirmed that there was no obstruction because some air was flowing through it. Despite there being no obstruction in the air piece, when Mr. Poon had the mouth piece in his mouth and was instructed to blow, no air came through at all. The officer demonstrated for Mr. Poon how to provide a suitable sample a couple of times. Mr. Poon was given three different opportunities to provide a sample with three different mouthpieces. On each occasion, no air went through at all. It is not as though some air went through but then he stopped early or that not enough air was entering the machine, there was no air going through at all. In my view, the only inference that can be drawn is that Mr. Poon was not blowing into the machine. Moreover, this inference is supported by P.C. Ennis's testimony that it looked to him like Mr. Poon just put the mouthpiece in his mouth and did not even attempt to blow into it. I accept P.C. Ennis's evidence on this point.

[82] When I consider Mr. Poon's evidence in light of all this other evidence that I do accept, I do not believe Mr. Poon's evidence that he was trying to provide a sample nor am I left in a reasonable doubt by his evidence. His evidence is completely inconsistent with what is seen on the video, the results of the tests and the evidence of P.C. Ennis. In my view this is a sufficient reason to reject Mr. Poon's evidence (see R. v. J.J.R.D. (2006), 218 O.A.C. 37 (C.A.) at paragraph 53 and R. v. R.A., 2017 ONCA 714 at paragraph 56).

[83] In light of these findings of fact, I find that the crown has proven beyond a reasonable doubt that Mr. Poon effectively refused to provide a breath sample when he failed to provide a proper sample despite being given ample opportunity to provide a sample and that his failure to do so was intentional. I therefore find him guilty of the offence of refusing to provide a breath sample and not guilty of the offence of impaired driving.

Released: September 19, 2017

Justice Mara Greene