Court File and Parties

Ontario Court of Justice

Date: 2017-10-27

Court File No.: Central East - Newmarket - 16-02002-00

Between:

Her Majesty the Queen

— and —

Jeffrey Turcotte

Before: Justice John McInnes

Heard on: June 1, 2017

Reasons for Judgment released on: October 27, 2017

Counsel:

• K. Pitt, counsel for the Crown
• S. Khehra, counsel for the defendant Jeffrey Turcotte

Reasons for Judgment

McINNES J.:

Introduction

[1] Jeffrey Turcotte is charged with operating a motor vehicle with a blood/alcohol concentration over the legal limit of 80 mg/100 ml of blood.

[2] On the evening of March 13, 2016, York Regional Police Constable Adam Chilvers received information that led him to investigate the defendant, Jeffrey Turcotte, for impaired driving. The defence concedes that PC Chilvers made a valid s. 254(2) approved screening device demand which was followed by a valid s. 254(3) breath demand which led ultimately to breath readings of 140 and 130 mg/100 ml of blood. The defence seeks to exclude those readings from evidence pursuant to ss. 9, 10(b) and 24(2) of the Charter but concedes the Crown has proven its case if the readings are not excluded.

[3] The defendant raises two Charter issues. First, he argues that PC Chilvers violated his s. 10(b) rights by failing to inform him of his right to counsel "without delay" upon arrest upon failing the ASD test. Second, he argues that he should have been released at about 5:00 a.m. and was instead held until 10:55 a.m. for no valid reason and this constituted an arbitrary detention contrary to s. 9 of the Charter.

[4] The Crown argues the short delay before the officer read the defendant his s. 10(b) rights was justified in the circumstances. Mr. Pitt concedes the unjustified "overholding" of the defendant was an arbitrary detention in breach of s. 9 of the Charter, but argues the s. 24(2) exclusionary remedy is unavailable because the breath samples had already been taken and thus were not "obtained in a manner" that violated the Charter.

Section 10(b)

[5] PC Chilvers told the defendant he was under arrest at 1:25 a.m. He then proceeded to handcuff him, perform a pat-down search incident to arrest and store the defendant's property. During this interaction PC Chilvers asked the defendant where his car keys were. The defendant replied he had left them on the ground near "the corner of the building" which was evidently a short distance from where his truck and the police cruiser were parked. At 1:27 PC Chilvers lodged the defendant in the back of his police cruiser and at 1:30 he read him his rights to counsel.

[6] Between 1:27 and 1:30, PC Chilvers did three things. He moved his police cruiser close to the corner of the building to ensure nothing happened to the keys before he had the chance to search for them and he initiated arrangements for another officer and a tow truck to attend. Third, he entered the defendant's particulars into his in-car computer system to determine if there were any outstanding warrants, charges or prior judicial interim release orders and the like.

[7] Section 10(b) reads:

10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right;

[8] In R. v. Suberu, 2009 SCC 33 the Supreme Court held the phrase "without delay" means "immediately" and that "[s]ubject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.": Suberu, para. 42.

[9] In R. v. Simpson, 2017 ONCJ 321, Schreck J. found a s. 10(b) breach where the arresting officer delayed informing the impaired driving arrestee of his right to counsel for nine minutes while he retrieved the arrestee's wallet from the center console of his vehicle, and in R. v. Sandhu, 2017 ONCJ 226 he found a breach where there was a seven minute delay while the officer spoke to the arrestee's passengers. Similarly, in R. v. Campbell, 2017 ONCJ 570, Felix J. found a s. 10(b) breach where there was a seven minute delay while the officer determined his legal authority to tow the arrestee's vehicle from a private driveway, summoned another officer to assist with towing, counted money he had seized from the arrestee and secured open liquor.

[10] Contrary conclusions were reached in R. v. Singh, 2017 ONCJ 386, however, where Botham J. found a five minute delay for a patdown search and to run the arrestee's name on the officer's in-car computer did not lead to a breach, in R. v. Foster, 2017 ONCJ 624, where Jaffe J. found no breach in the face of a five minute delay while the officer conducted a pat-down search and lodged the arrestee in the back of the cruiser and in R. v. Rossi, 2017 ONCJ 443, where Henschel J. declined to find a breach where the female arresting officer delayed for seven minutes so a male officer could search the arrestee incident to arrest and so she could retrieve his cell phone at his request and calm him down so he would be able to absorb what she was telling him about his right to counsel.

[11] In my view, the different results in these cases reflect differences in the facts but also to some extent different perceptions about what "immediately" means in practical terms. Clearly, as mentioned in some of the above decisions, "immediately" connotes a more urgent standard than "as soon as is practicable" or "reasonably promptly".

[12] On the other hand, the context in which the Suberu Court came to interpret "without delay" as synonymous with "immediately" is important to a correct understanding of what "immediately" means in practical terms. Viewed in that light, I do not think the Court intended it to mean the same thing as, say, "instantaneously".

[13] The most important contextual element is that the Court of Appeal had held that despite the words "without delay" in s. 10(b), "a brief interlude between the commencement of an investigative detention and the advising of the detained person's right to counsel under s. 10(b) during which the officer makes a quick assessment of the situation to decide whether anything more than a brief detention of the individual may be warranted": R. v. Suberu, 2007 ONCA 60, para. 50.

[14] In my respectful view, the holding in Suberu that police have a duty to facilitate s. 10(b) including its informational component "immediately" was intended primarily to overrule that specific proposition and to make it clear that providing the right to counsel information could not be suspended until after an investigative interview of the detainee, even a brief one. This reading is supported by the following expository comments that precede the holding as quoted in paragraph 8 above:

A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [emphasis added]

[15] As the Supreme Court pointed out, "any interpretation of the phrase 'without delay' must be consistent with a purposive understanding of the Charter provision in which it occurs": Suberu, para. 40. The underlying purpose of the right to counsel is to ensure that persons "vulnerable to the exercise of state power and in a position of legal jeopardy" have access to legal assistance to "regain their liberty, and guard against the risk of involuntary self-incrimination". Providing the informational component of the right in a timely way is important because it "also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so": Suberu, paras. 38 and 40.

[16] In my view, an important consideration in determining whether a short delay runs afoul of the obligation to effect s. 10(b) "without delay" is whether and to what extent this purpose is engaged on the facts of the case. It is, of course, far more directly and clearly engaged by an investigative interview than by an officer leaving an arrestee in the back seat of the cruiser for a short number of minutes while she attends to other pressing tasks.

[17] The immediacy requirement is also subject to "concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter." In my view, conducting a pat-down search clearly falls within the officer safety limit on the immediacy requirement. Arranging for another officer to attend to deal with the towing issue also relates to the legal duty to conduct the breath tests "as soon as is practicable" because the whole reason for summoning the other officer is that it allows the arresting officer to take the arrestee to the police station for the tests sooner.

[18] As for PC Chilvers taking a moment to "run" the defendant on his in-car computer, in my view taking this step before reading the right to counsel information was entirely reasonable given its purpose was to determine if there were other bases for arresting the defendant such as whether he was subject to a recognizance or an outstanding warrant. An essential component of the obligation to inform detainees of their right to counsel is making them aware of the reasons for the arrest and the extent of their jeopardy. Taking a minute or two to ascertain from a computer whether any additional reasons for arresting the subject is consistent with the underlying purpose of s. 10(b) and comports with the immediacy requirement.

[19] I find that PC Chilvers did not breach the defendant's s. 10(b) rights.

Sections 9 & 24(2)

[20] As noted above, the Crown concedes the "overholding" of the defendant for six hours constitutes a breach of his s. 9-protected right not to be arbitrarily detained. In my respectful view, this was an appropriate concession in light of the abundant authority for the proposition that absent a justification corresponding to the criteria set out in s. 498 of the Criminal Code, including R. v. Provo, 2015 ONCJ 311, para. 38 (and cases cited there); R. v. Emmott, 2016 O.J. No. 6864 (CJ); and R. v. Lorenzo, 2016 ONCJ 634.

[21] Mr. Pitt argues, however, that because the breath readings were taken before the Charter-infringing overhold of the defendant, they were not "obtained in a manner" that violated s. 9 of the Charter and the s. 24(2) exclusionary remedy is therefore not available. This position was entirely reasonable and well argued and it likely would have held the day before the Court of Appeal for Ontario released its decision in R. v. Edwards, 2016 ONCA 389. In my view, however, the absence of a causal connection between the breach and the breath tests is no longer dispositive (if it ever was). I find the breath tests were "obtained in a manner" that violated the Charter.

[22] In Edwards, Laskin J.A. explained that although evidence obtained after a breach was generally thought not to meet the s. 24(2) "obtained in a manner" threshold, the generous approach taken to this threshold issue in the jurisprudence did not preclude such a finding, and indeed that was a finding in Edwards itself. Laskin J.A. further explained that the following principles should guide the determination of whether the threshold test is met [at para. 72]:

• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire "chain of events" between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.

[23] In the present case, I find the taking of the breath samples and the overhold were "part of the same transaction or course of conduct". My reasons for so concluding mirror those of Hawke J. in Lorenzo, paras. 14 to 22:

Turning to these considerations in Ms. Lorenzo's case, and turning firstly to whether the evidence and the Charter breach were part of the same transaction or course of conduct, I conclude that they were part of the same transaction for the following reasons.

This breach concerns detention and this detention was continuous from when it commenced at approximately 1:40 a.m., with a roadside demand until Ms. Lorenzo's release at 9:20 a.m.

The legal justification for this detention ran along with the chain of events involved in the case. First, the officer had a reasonable suspicion the defendant had alcohol in her body. This justified detaining her for a roadside demand and sample. Then she failed the roadside test and this gave the officer new grounds for detaining her by means of an arrest and a s. 254(3) demand. This justified detaining her up until the evidence of the readings was obtained pursuant to the demand. At this point, if appropriate grounds had existed, then s. 498(1) and (1.1), could have justified the continuation of her detention. The fact that I found that this last potential justification did not exist in the circumstances of this case, does not make Ms. Lorenzo's detention at 3:08 a.m. a new detention. Also, the fact that she moved from detention in the presence of an officer to imprisonment did not make it a new detention.

When one puts all of the points in the last two paragraphs together it follows that the evidence and the Charter breach were part of the same transaction.

Turning next to whether there was a connection between the evidence and the breach I find that there was and the connection was both contextual and temporal.

Before describing these connections in this case I note that Laskin J.A. in R. v. Pino, supra found a temporal connection in that case because the three breaches in that case were "...close in time and are part of a continuum straddling Ms. Pino's arrest." (para 74) Further, he noted "... I take "contextual" -- a word often used by lawyers and judges -- to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino's arrest. And the two s. 10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. ..." (para. 74).

The something that happened to Ms. Lorenzo is that she was detained. She was detained for two sequential investigative purposes, and thereafter she continued to be detained. There is a contextual connection between the evidence (the readings) and the breach because the decision to release or not under s.498 is to be decided in the context of each individual investigation. Justifying detention under s. 498(1.1) involves "having regard to all the circumstances" and this inherently involves in an over 80 case, among other things, the evidence about blood alcohol levels. In addition, in spite of their mishandling of the situation both of the Staff Sergeants agreed in his/her evidence with this connection between the readings and his/her decision.

The connection between the evidence and the breach was also temporal as this was along a continuum and close in time. Ms. Lorenzo's last blow was at 3:00 a.m., then she was served with documents, and then immediately thereafter she was placed in a cell at 3:08 a.m.

In summary, the evidence and the Charter breach were part of the same transaction. Further, there were temporal and contextual connections between the evidence and the Charter breach. These connections were relevant as they were neither too tenuous nor too remote.

Therefore, in the circumstances of this case, I conclude that the threshold test in s. 24(2) of the Charter has been met and the remedy of exclusion of evidence is available for consideration. [bold emphasis in original]

[24] The one material difference between the present case and Lorenzo is that here there was no evidence from the officer who decided to hold the defendant for six additional hours. PC Chilvers did not make that decision and, indeed, the officer who did was never identified in the evidence before me.

[25] The Crown relies on the following passage from the decision of Heeney R.S.J. in R. v. Kavanagh, 2017 ONSC 637, which he submits is binding on me:

Had I upheld the finding of a s. 9 breach, I would not have excluded the Intoxilyzer readings under s. 24(2) of the Charter. In my view, the readings were not "obtained in a manner that infringed or denied" the s. 9 rights of the Appellant, within the meaning of that phrase as defined by Pino.

In Pino, the evidence and the Charter breaches were part of the same transaction, which was the dangerous, armed and masked take-down and arrest of Ms. Pino. The marijuana was discovered in her trunk immediately after, and as a direct result of, the arrest. The s. 8 breach was part and parcel of the manner of the arrest itself. The first s. 10(b) breach occurred within minutes of her arrest, when she was misinformed about her right to counsel. The second s. 10(b) breach began to occur shortly thereafter, and continued for 5 1/2 hours until she was finally given an opportunity to consult counsel.

In the case at bar, the arrest transaction was completed by Constable Flink, who formed the requisite grounds, gave a proper demand and took the Appellant into custody for purposes of the breath test. No Charter breach occurred during this transaction. The second transaction involved the exercise, by the Appellant, of his right to counsel, and again no breach occurred during the course of that. The third transaction involved the taking and analysing of breath samples, which was done by the qualified Intoxilyzer technician, Constable Goodlett. No breach occurred during that transaction. The next transaction involved formally charging the Appellant, and serving him with various documents. That was, once again, done by Constable Flink, and involved no Charter breach. The final transaction was keeping the Appellant in custody until he was sober. That was the decision of the officer-in-charge, Sgt. MacDonald. If a breach occurred, it was committed by her, and took place at some point between about 1:30 a.m. and 9:05 a.m., when it could be said that it was no longer in the public interest to detain the Appellant.

There is simply no connection -- causal, temporal or contextual -- between obtaining the Intoxilyzer results and the decision, made subsequently, to keep the Appellant in custody for his own protection.

The disconnect between the gathering of the evidence and the Charter breach is particularly evident when one considers that any such breach would have been committed by Sgt. MacDonald. The evidence was obtained by virtue of a valid breath demand having been given by Constable Flink, and by samples having been properly taken and analyzed by Constable Goodlett. Sgt. MacDonald had nothing whatsoever to do with that transaction.

I would not find the necessary connection simply by reason of the fact that there was a continuous detention from the time of the roadside demand until the Appellant was released, as did Hawke J. in R. v. Lorenzo, 2016 ONCJ 634. It is difficult to imagine a Charter breach scenario where such a connection would not be present. Suppose that a Charter breach was committed against an accused charged with murder, on the third day of his continuous detention. Would that lead to the exclusion of his confession properly obtained on day #1?

While Laskin J.A. directs the court to consider the entire chain of events, that does not mean the mere fact that the obtaining of the evidence and the Charter breach can both be found somewhere on that chain will suffice to support a conclusion that the evidence was obtained in a manner that breached the individual's rights. The obtaining of the evidence and the Charter breach must still be found to be part of the "same transaction or course of conduct". In the case at bar, the decision by Sgt. MacDonald to keep the Appellant in custody was not part of the transaction that generated the Intoxilyzer results, nor was it part of the course of conduct of the two other officers who, together, generated the Intoxilyzer results.

[26] Ordinarily Kavanagh, a summary conviction appeal decision, would be binding on me. Here, however, the specific holding the Crown relies on – "I would not have excluded the Intoxilyzer readings under s. 24(2) of the Charter [because in] my view, the readings were not 'obtained in a manner that infringed or denied' [the Charter]" – is obiter dicta. Heeney R.S.J. concluded there was no breach in the circumstances of that case and the additional commentary regarding the application of s. 24(2) forms no part of the ratio decidendi of the case, i.e. the express or implied legal conclusions necessary to the result on the facts of the case: R. v. Henry, 2005 SCC 76, paras. 52-59.

[27] Further, in the case before me there was no evidence establishing a "disconnect between the gathering of the evidence and the Charter breach." While not pertinent to the question of whether I am bound by the above comments in Kavanagh, I also note with the greatest respect that my finding, like Justice Hawke's in Lorenzo, does not rest on "the mere fact that the obtaining of the evidence and the Charter breach can both be found somewhere on [the entire chain of events]" and is nothing like finding a confession taken on day one of a detention to be "part of the same transaction or course of conduct" as a Charter breach committed on day three. In my view, applying that reasoning on the facts before me would amount to applying the strict "but for" causality test that the Court of Appeal rejected in Edwards.

[28] In applying s. 24(2) of the Charter, I must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard for (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and, (iii) society's interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32; R. v. Harrison, 2009 SCC 34.

[29] As Green J. recently observed "[t]here is a continuum of Charter-infringing state conduct -- a 'fault line'… -- that extends from the negligent or inadvertent to the knowing or intentional subversion of constitutionally protected rights": R. v. Lofthouse, 2017 ONCJ 12, para. 12, citing R. v. Kitaitchik, para. 41. In the present case it is difficult to ascertain where on this "fault line" the Charter-infringing state conduct falls because there is no evidence about why the decision to hold the defendant was taken. There is no evidence of good faith to reduce the seriousness of the violation and the need for the court to disassociate itself from the police conduct. Whether it was the product of negligence, wilful blindness or a wilful and flagrant disregard of the defendant's Charter rights, it was "a significant departure from the standard of conduct expected of police officers" and as such "lean[s] this aspect of the inquiry in favour of exclusion of the evidence": R. v. Rehill, 2015 ONSC 6025 at para. 28.

[30] The defendant's imprisonment for several hours was neither technical in nature nor fleeting in time and in my view it constituted a significant and substantial abrogation of his Charter-protected liberty interest. The second Grant criterion favours exclusion.

[31] The breath results are reliable evidence and essential to the Crown's case. There is a societal interest in an adjudication of the case on its merits and, as is usually the case, the third Grant criterion weighs against exclusion.

[32] As noted in Lorenzo and various other cases, the problem of overholding appears to have a systemic dimension which thus far shows no sign of abating. Ultimately, balancing the Grant factors on the facts of this case comes down to my determination of "whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct": Rehill, para. 28. In my view, admitting the evidence would have that effect and this outweighs society's interest in an adjudication on the merits. It follows that admitting the breath results would bring the administration of justice into disrepute and consequently they must be excluded under s. 24(2) of the Charter.

[33] Accordingly, the charge is dismissed.

Released: October 27, 2017

Signed: Justice John McInnes