Court File and Parties

Court File No.: Brampton 17-1363 Date: 2018-05-03 Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Marlena Melo

Before: Justice I. Jaffe

Heard on: February 6, 7, 8, 9 and 26, 2018

Reasons for Judgment released on: May 3, 2018

Counsel:

• M. Thomaidis, for the Crown
• A. Gold and L. Metcalfe, for the accused Marlena Melo

Judgment

JAFFE J.:

Introduction

[1] On December 3, 2016, shortly after leaving her work Christmas party at the Versailles Banquet Hall in Mississauga, Ms. Melo found herself under arrest and charged with having had the care and control of her vehicle while her abilities were impaired by alcohol, and while her blood alcohol level exceeded the legal limit. The circumstances of her arrest led to two additional charges: resisting arrest and assault with intent to resist arrest.

[2] Ms. Melo has applied for Charter relief alleging multiple breaches of her Charter rights. Specifically, she argues the following:

• Her s. 8 right to be free from unreasonable search and seizure was violated when the arresting officer opened her car door without lawful authority;
• Her s. 7 right to life, liberty and the security of her person was breached by the excessive force used by the arresting officer;
• Her s. 7 rights were also violated by the failure of the police to preserve security camera footage from the exterior of the banquet hall, which she says would have captured the circumstances of her arrest; and finally
• Her s. 9 right against arbitrary detention was breached when she was held by Peel Police for approximately 4 ½ hours following her breath tests (i.e. the "over-hold argument"). Relying on R. v. Pino, 2016 ONCA 389, Ms. Melo argues that there exists a contextual connection between the breach and the seizure of her Intoxilyzer results, and a s. 24(2) analysis ought to result in the exclusion of the results.

[3] The Charter applications and trial proceeded before me in a blended fashion. Five police witnesses testified, as well as Ms. Melo. Much of the evidence is not in dispute, rather the dispute lies in the interpretation of the evidence.

[4] For instance, all parties agree that at 2:35 a.m. on December 3, 2016, police observed Ms. Melo behind the wheel of her Acura which was parked behind the Versailles Banquet Hall in Mississauga. Four minutes later, at 2:39 a.m., Ms. Melo was sitting handcuffed in the back of P.C. Bell-Morena's police cruiser. Much of this case is about what happened during those four minutes, and whether the arresting officer's conduct towards Ms. Melo was, or was not justified.

Charter Arguments

Sections 7 and 8: Unlawfully Opening the Car Door (s. 8) and Excessive Use of Force (s. 7)

The Evidence

[5] On December 2, 2016, P.C. Bell-Morena had been on the job with PRPS for about a year and half when, while working the 6 p.m., to 6 a.m. shift, he was assigned to the festive RIDE program. At 2:27 a.m., a call came onto his screen. The complainant worked for a drink and dial company. The complainant advised that Ms. Melo had requested their services, but had failed to answer their calls when they arrived to pick her up. Ms. Melo eventually called back and was belligerent on the phone, and ultimately told the drink and dial operator that they can disregard her request, she was would be driving herself. The complainant reported that Ms. Melo appeared intoxicated on the phone and provided Ms. Melo's full name, contact information and details of her car.

[6] Having received the call, P.C. Bell-Morena decided to drive to the back of the banquet hall. When he arrived he noticed an Acura, and three taxi cabs in the south east corner of the parking lot, their drivers standing outside.

[7] P.C Bell-Morena noticed that the Acura's engine and lights were not on, however, he could tell there were two occupants within the car. He exited the cruiser and approached the driver's side at which point Mr. Melo exited passenger side. P.C. Bell-Morena described Mr. Melo as being noticeably intoxicated, and the officer asked him to get back into the car.

[8] P.C. Bell-Morena then called out the name "Marlena" which caught the driver's attention. The officer testified that the windows were fogged and after trying unsuccessfully to communicate through the closed window, he opened the driver's door. P.C. Bell-Morena then informed Ms. Melo that the designated driver service had called police and advised that she was drunk and intended to drive.

[9] Asked by the Crown whether at this point P.C. Bell-Morena had formed any grounds, the officer answered that based on the information provided in the complainant's call to the police, combined with the fact that Ms. Melo was parked outside a banquet hall that served alcohol, he had already formed the suspicion that Ms. Melo was in care and control of a vehicle having consumed excess alcohol.

[10] P.C. Bell-Morena explained that his purpose was to have Ms. Melo provide a sample of breath into an ASD, although he referred to the device as a "Breathalyzer" when speaking with Ms. Melo. Ms. Melo's response to the officer's request was "no don't worry I have arranged a ride". At that point, P.C. Bell-Morena noticed a very heavy odour of alcohol emanating from the car. When Ms. Melo turned to talk to him, he realized it was coming from her breath.

[11] P.C. Bell-Morena told Ms. Melo that she would have to step out of car and do a Breathalyzer test back at the police car. P.C. Bell-Morena testified that he asked Ms. Melo to exit the vehicle multiple times and each time she refused, saying she was making "alternative plans". The officer testified that Ms. Melo appeared to having trouble pronouncing the word "alternative".

[12] According to the officer, Ms. Melo did not understand why she would be required to take a breath test when she was not driving. P.C. Bell-Morena testified that he tried to explain to Ms. Melo the difference between operating a motor vehicle and being in care and control. P.C. Bell-Morena said that Ms. Melo appeared to have difficulty understanding the difference between the two offences, and he acknowledged that this confusion is not unusual.

[13] While this was going on, Ms. Melo was fiddling with her phone and P.C. Bell-Morena reached across her, coming face to face with her, took the phone out of her hands and placed it on the dashboard. It is at this point that the officer noticed Ms. Melo had watery eyes and a flushed face. The officer's act of taking her phone angered Ms. Melo and she attempted to grab it back. It was then that P.C. Bell-Morena grabbed hold of Ms. Melo's arm to prevent her from retrieving her phone. P.C. Bell-Morena described how Ms. Melo started pushing him away with her left arm and when he lost his grip of her arm, Ms. Melo attempted to close the driver's door with her right hand.

[14] P.C. Bell-Morena described Ms. Melo's attempt to close the door as a "game changer". The officer explained that he was worried that she would put the car in motion. He had noticed that she had what appeared to be the key fob in her lap. The officer forced open the door, grabbed Ms. Melo's arm. Ms. Melo responded by hitting him in the chest. P.C. Bell-Morena pulled Ms. Melo out of the car, and she landed on the face down on the ground.

[15] By the then, the officer had formed grounds to believe she was impaired and in care and control based on additional grounds such as Ms. Melo's red rimmed watery eyes, flushed face, inability to pronounce words and understand simple instructions.

[16] While Ms. Melo was on the ground, the officer was able to put handcuffs on both of her wrists. During this process, P.C. Bell-Morena recalled that Mr. Melo was yelling to Ms. Melo to "shut up". P. C. Bell-Morena instructed Ms. Dosanjh to tell dispatch they had one in custody. Within seconds, he realized that she was on the wrong channel and instructed her to make second call on the other channel.

[17] P.C. Bell-Morena testified that as he was escorting Ms. Melo back to the cruiser, she was upset and flailing. P.C. Bell-Morena explained that Ms. Melo was calling him a "prick" and a "cock sucker" and asked him "does this make you feel like a man?"

[18] At one point, while Ms. Melo was up against the police cruiser, she began to "cow kick" (i.e. kick backwards) striking the officer in his thigh. At this point, P.C. Bell-Morena applied two knee strikes to the side of her right leg. The officer explained that a knee strike is a distraction technique which is also designed to take some functionality out of the detainee's leg. However, that caused Ms. Melo to become even more upset and while P.C. Bell-Morena was attempting to get Ms. Melo into the cruiser, he felt a tug on his vest. He turned around and, and realizing it was Mr. Melo, he pushed him away.

[19] At this point, another officer had arrived on scene and P.C. Bell-Morena instructed him to arrest Mr. Melo for "obstruct". Upon hearing this, Ms. Melo kicked P.C. Bell-Morena and he explained that he believed the easiest and safest way to control the situation was to do a "chin blade" and put Ms. Melo to the ground. He described a chin blade as raising someone's chin up, which causes them to lose balance. Ms. Melo went to ground, on her back with her cuffed hands behind her.

[20] P.C. Bell-Morena then turned Ms. Melo onto her stomach fearing that on her back, she could kick him again. The officer told Ms. Melo to stop being ridiculous, and that she was making matters worse. However, according to P.C. Bell-Morena, Ms. Melo continued to yell at him using what he described as "very colourful language".

[21] As P.C. Bell-Morena was putting Ms. Melo into the police cruiser, she kicked him in the groin. P.C. Bell-Morena forced her feet into the car by kicking her legs, and closed the door. P.C. Bell-Morena testified that after composing himself for a moment, he and Ms. Dosanjh searched the Acura for identification. He observed the car fob on the driver's seat, which he used to turn the car on and off, thus confirming that it was operational.

[22] P.C. Bell-Morena returned to the police cruiser and heard Ms. Melo still screaming from within the car. He explained that he retrieved his yellow notes from his trunk, entered the cruiser and opened the partition to the back seat. At that point he detected a heavy odour of alcohol.

[23] The officer then read Ms. Melo her rights to counsel which began at 2:53 a.m. Asked by P.C. Bell-Morena at the end of each right whether she understood, Ms. Melo often responded with profanities.

[24] P.C. Bell-Morena testified that he then left the scene and headed towards 12 Division. Ms. Melo was still yelling in the back seat during the drive. As he pulled up to 12 Division, he was advised by the breath technician, P.C. Pallett that they had to re-route to the airport division as the female cells at 12 division were full.

[25] Rajdip Dosanjh is a high school teacher, and an auxiliary member of the Peel Region Police Service (PRPS). Since April 2016, she has volunteered with the PRPS, attending various events and on occasion, accompanying police officers on patrol. On December 2, 2016, Ms. Dosanjh was assigned to be the patrol escort for P.C. Bell-Morena. This was her first time working with the RIDE program. The two set up at various RIDE check spots in Mississauga, and at approximately, 2:30 a.m. she was present when they were dispatched to the Versailles Banquet Hall.

[26] When they arrived at approximately 2:35 a.m., Ms. Dosanjh observed an Acura TL parked perpendicular the banquet hall. She observed a taxi parked 15-20 meters from the Acura, and a couple men standing by the taxi.

[27] Ms. Dosanjh testified that as soon as they arrived, a male exited from the passenger side of the Acura. This male turned out to be Ms. Melo's husband. He shut the passenger door with both hands pushing against the door, almost falling back in the process. Once he straightened himself up, he walked towards the police cruiser with hands up asking "hey, what is going on?"

[28] P.C. Bell-Morena directed Ms. Dosanjh to speak with Mr. Melo while he tended to Ms. Melo, the driver of the Acura. Ms. Dosanjh repeatedly instructed Mr. Melo to get back into the car. He complied, and when Ms. Dosanjh shut the passenger door, she was able to pay more attention to what was happening between P.C. Bell-Morena and Ms. Melo. P.C. Bell-Morena had at that point opened the driver's side door and was speaking to Ms. Melo. Prior to that however, Ms. Dosanjh overheard P.C. Bell-Morena repeatedly ask Ms. Melo to please get out of the car. Ms. Dosanjh could not hear precisely what Ms. Melo was saying, however she could tell that Ms. Melo was looking at her phone, and did not appear to be paying attention to P.C. Bell-Morena.

[29] When P.C. Bell-Morena reached for Ms. Melo's phone, Ms. Dosanjh overheard Ms. Melo shout something at the officer, although she could not discern the words. When Ms. Melo reached for her phone, P.C. Bell-Morena grabbed her hand. Ms. Melo then swatted at the officer with her left hand to get her phone.

[30] At this point, Ms. Dosanjh observed P.C. Bell-Morena grab Ms. Melo's arm and pull her out of the car, causing Mr. Melo to become upset. Ms. Dosanjh's attention returned to Mr. Melo, who was then attempting to open his passenger side door. He was able to push himself out of the car.

[31] Ms. Dosanjh then noticed that both Ms. Melo and P.C. Bell-Morena on the ground by the front of the Acura. She could see that Ms. Melo was in handcuffs and could hear her yelling obscenities at P.C. Bell-Morena. By this point, Mr. Melo, who was able to push himself out of the car, walked towards the front of the Acura, while telling his wife to stop yelling at the officer. Ms. Dosanjh repeatedly instructed Mr. Melo to get back into the car.

[32] At P.C. Bell-Morena's direction, Ms. Dosanjh called dispatch and advised them that they had someone in custody. In turns out Ms. Dosanjh was on the wrong radio frequency when she first notified dispatch, and within a minute, placed a second call on the right frequency.

[33] She then observed P.C. Bell-Morena walk Ms. Melo back to the police cruiser. Ms. Melo was handcuffed to the rear and while her focus remained on Mr. Melo, she noticed that Ms. Melo continued to yell obscenities at P.C. Bell-Morena and appeared to be attempting to wiggle free from the officer's hold by squirming and kicking. At one point Ms. Dosanjh observed P.C. Bell-Morena lift Ms. Melo off her feet.

[34] Ms. Dosanjh did not see how P.C. Bell-Morena got Ms. Melo to the trunk of the cruiser, however she did notice that the officer appeared to be having difficulty getting Ms. Melo into the cruiser. During this time, Mr. Melo continued in his efforts to reach his wife while Ms. Dosanjh, walking backwards facing Mr. Melo, attempted to direct him back to the Acura.

[35] Mr. Melo nudged Ms. Dosanjh, went around her and approached P.C. Bell-Morena and Ms. Melo. In response, P.C. Bell-Morena pushed Mr. Melo and told him he had to get back. Ms. Dosanjh was then able to guide Mr. Melo back to the Acura. To Ms. Dosanjh, it appeared that Mr. Melo's actions were motivated by concern for his wife, and not aggression towards P.C. Bell-Morena.

[36] By the time Ms. Dosanjh had Mr. Melo near the hood of the Acura, P.C. Frate had arrived on scene. P.C. Bell-Morena instructed P.C. Frate to charge Mr. Melo with obstruct justice.[1] P.C. Frate followed those instructions, and Mr. Melo was handcuffed and placed into his cruiser. At that point, Ms. Dosanjh was able to focus on P.C. Bell-Morena and noticed that Ms. Melo was face down on the ground and P.C. Bell-Morena had his knee on her back. She could hear P.C. Bell-Morena telling Ms. Melo that she had to stop resisting.

[37] Ms. Dosanjh came to the officer's aid, and together, they lifted Ms. Melo to her feet. Both Ms. Dosanjh and P.C. Bell-Morena had their hands on Ms. Melo's shoulders and wrists, and Ms. Melo continued to squirm. At some point, Ms. Melo calmed down and P.C. Bell-Morena was able to open the back passenger door of the cruiser.

[38] As they got close to the entrance of the cruiser, Ms. Dosanjh stepped aside. When Ms. Melo was entering the cruiser, Ms. Dosanjh observed Ms. Melo twist herself around and kick P.C. Bell-Morena in the thigh and groin area. Ms. Dosanjh recalled that P.C. Bell-Morena yelled out, and she cringed because Ms. Melo was wearing high heels at the time. P.C. Bell-Morena then grabbed Ms. Melo's legs, shut the door and walked away.

[39] The two then searched the Acura for identification and Ms. Dosanjh located a purse, inside of which was Ms. Melo's identification. Once Ms. Melo's identification was found, the two returned to the cruiser and P.C. Bell-Morena read Ms. Melo her rights to counsel.

[40] Most of Ms. Melo's answers in response to the officer's questions were in the form of obscenities. It was at that point that Ms. Dosanjh noticed an odour of alcohol emanating from Ms. Melo that was so strong, it caused her to shut the plastic divider between the front and rear cabins of the cruiser.

[41] In cross-examination, Ms. Dosanjh testified while Ms. Melo was in the back of the cruiser, she pleaded with her saying "miss, look at me, can you help me?" Ms. Dosanjh explained that she was not about to interfere with the arrest process and told Ms. Melo that she needed to answer the officer's questions.

[42] Ms. Dosanjh was asked in cross-examination why she had not made any notes concerning Mr. Melo's conduct which she had described in her testimony. Ms. Dosanjh explained that Mr. Melo was not a prime person of interest at the time.

Sharing Notes

[43] It was during Ms. Dosanjh's cross-examination that Ms. Dosanjh admitted that while waiting in the courthouse hallway prior to testifying, P.C. Bell-Morena provided her with a copy of handwritten notes and instructed her to walk around a corner, and read them. Ms. Dosanjh complied, not feeling as there was anything improper in what she was being asked to do. Ms. Dosanjh admitted to Mr. Gold that the notes she read contained a lot more detail about Ms. Melo and her husband.

[44] P.C. Bell-Morena admitted that he had given her the "file" to "refresh her memory". He testified that he asked Ms. Dosanjh if she would feel more comfortable looking at his notes, and she replied "yes". P.C. Bell-Morena defended his decision to show Ms. Dosanjh his notes and claimed he did not see anything wrong with having done so. He said he told Ms. Dosanjh to go down the hall and read the notes, and to not talk to him about his observations.

Ms. Melo's Evidence

[45] Ms. Melo is a 31-year old real estate agent who, on December 2, 2016 attended her work Christmas party in the company of her husband, James Melo. The pair arrived at the Versailles Banquet hall at about 6:30 p.m.

[46] Knowing that they would be consuming alcohol, Ms. Melo made arrangements with a drink and dial service to pick them up between 12:30 and 1 a.m. She explained in evidence that the service provides two individuals who arrive in a car, one of whom drives the customer home in their own car, while the other follows behind. Ms. Melo had prepaid for the service at the time of the booking.

[47] Ms. Melo testified that she was having fun at the party and lost track of time. When she retrieved her phone to check the time, she noticed that the driver from the drink and dial service had been texting her. It was then she realized she had missed their ride. Ms. Melo immediately began texting the driver asking him to come back. The driver replied that he couldn't, and suggested Ms. Melo call the office. At this point, Ms. Melo and her husband said their good byes to the dwindling party crowd, retrieved their belongings and left the building.

[48] While at the front of the banquet hall, Ms. Melo called the drink and dial office and admitted that she was belligerent to the person on the other end of the phone asking "what the "f"! How am I going to get home?" Ms. Melo denied expressing an intention to drive herself home. She admitted in cross-examination, that she was not proud of the way she spoke to the employee, and admitted that her reaction was the byproduct of having consumed alcohol.

[49] Ms. Melo explained that her husband was by then talking to a taxi driver, and wanting to sit in her car, she reached into his pocket and retrieved the car key. She unlocked the car door, sat in the driver's seat and repeatedly called the drink and dial company. Asked why she entered her car, she explained that it was cold out and she was wearing a light weight jacket.

[50] Ms. Melo produced a copy of her phone bill which reflected the numerous times she placed calls to the company. According to the bill, the calls commenced at 2:28 a.m. and ended at 2:35 a.m. She explained that she was attempting to contact someone to arrange for a ride home. She emphatically denied the suggestion that she would have changed her mind, and decided to drive home on her own.

[51] Ms. Melo testified that she was attempting to reach someone at the drink and dial office when P.C. Bell-Morena first approached her window. Ms. Melo testified that she could not discern what the officer was saying. Within seconds, the door of her car was opened (she does not recall if it was she or the officer who opened it), and the officer was shouting at her. She could make out certain words he was saying – something about her drinking and driving, and she attempted to explain to the officer that she was finding a ride home. Ms. Melo showed the officer her phone, but P.C. Bell-Morena would not listen to her and continued to shout. She admitted yelling back at him.

[52] In cross-examination, she testified that P.C. Bell-Morena was not listening to what she was trying to explain, and she felt compelled to sit in her car and explain herself. She testified that the next thing she knew, P.C. Bell-Morena grabbed her jacket and pulled her out of the car, and dragged her from the side of the car to the front. She recalled that he dug his knee into her buttocks area and she called for her husband. She also recalled hearing her husband telling from a distance to calm down. Ms. Melo described how at this point, she was crying, screaming and "using not so favourable language" towards P.C. Bell-Morena.

[53] Ms. Melo recounted how P.C. Bell-Morena picked her off the ground, forcefully pinned her up against his cruiser, and handcuffed her. As P.C. Bell-Morena was forcing her into the cruiser, she wacked her head on the top of the door opening and at that point, Ms. Melo says she lost all sense of reason. She testified that she "lost control" of her emotions and started thrashing her legs around and kicked the officer.

[54] While in the back seat, she was upset. Ms. Melo testified that she asked Ms. Dosanjh to help her by removing hair from her mouth. She recalled P.C. Bell-Morena responded by saying "you can puke if you want", and he closed the divider.

[55] Ms. Melo testified that as a result of her physical struggle with P.C. Bell-Morena, she sustained a lot of bruising and scrapes on her elbows, knee, and buttock, and her wrists were swollen. Ms. Melo identified those injuries in a series of coloured photographs which were filed as exhibits.

[56] Asked in cross-examination if she was inebriated at the time she encountered the police, Ms. Melo explained that she had consumed more than she normally did, but she did not believe she was inebriated. She did however, admit she was not sober enough to drive. Ms. Melo agreed in cross-examination that she used vulgar language towards P.C. Bell-Morena, but denied physically resisting his efforts to arrest her.

[57] Ms. Melo also acknowledged that she swore to the drink and dial employee when she called them. She admits she was far from home and was frustrated. She also admitted in cross examination that her state of inebriation affected her logic on the night in question.

[58] Ms. Melo also admitted that she does not remember everything about the events in question because it was a traumatic night, and it occurred over a year ago. She recalled that P.C. Melo put her to the ground once at the scene, though admitted that her disclosure of the police evidence, reveal she was twice put to the ground. She could not remember what she had done with her keys when she entered the driver's side of her car, or whether she turned on the car to activate the heater.

Credibility Assessments

[59] I will start by addressing the sharing of the notes, and how it impacts on my assessment of the credibility of both police witnesses. I accept Ms. Dosanjh's evidence that she did not believe there as anything improper in viewing another witness' notes. Ms. Dosanjh is not a police officer, and would have no basis to believe otherwise, especially when the invitation to view the notes came from a police officer.

[60] The real question however, is what impact, if any, did reviewing P.C. Bell-Morena's notes have on the reliability of Ms. Dosanjh's evidence. This question was never put to Ms. Dosanjh. And while she admitted the notes she viewed contained "a lot more detail" it was not made clear what exactly she reviewed that was not already contained in her notes or "will say". Nor was she asked about whether or not she had any independent recollection of those specific events.

[61] Ms. Dosanjh struck me as credible witness. While she made detailed notes of her involvement immediately following Ms. Melo's arrest, she seemed to have a clear, and genuine independent recollection of the events. This was her first involvement in a RIDE program, and it would not be surprising if the events of that night left an impression.

[62] Ms. Dosanjh also struck me as being fair. She was quick to admit the limitations in her evidence, for instance admitting she could not discern what exactly was being said between Ms. Melo and P.C. Bell-Morena. She was quick to add that Mr. Melo was acting out of concern for his wife, and was not aggressive. She explained from her observation Ms. Melo was not "full out" kicking but kicking merely as way of releasing herself. In other words, it did not appear as though Ms. Dosanjh was tailoring her evidence to conform with P.C. Bell-Morena's anticipated evidence, or to simply assist the Crown. In short, I believed her.

[63] I view with more skepticism P.C. Bell-Morena explanation that he thought it was acceptable to share his notes with another Crown witness. Regardless of his relatively novice status as a police officer, he must have realized that sharing notes could taint the independent recollection of witnesses, not to mention undermine the Court's order excluding witnesses. However, while I believe the officer's act of sharing his notes revealed a lack of judgment, I do not believe the officer was being untruthful concerning the events in question.

[64] Much of the officer's evidence was consistent with Ms. Melo's own account of the events, and where their accounts diverged, P.C. Bell-Morena's evidence was largely corroborated by Ms. Dosanjh, whose evidence I accept.

[65] The officer was candid about the nature and extent of the force used in arresting Ms. Melo. He was not attempting to conceal his actions. In fact, P.C. Bell-Morena's notes, and testimony disclosed more force on Ms. Melo than she apparently recalls. While the officer testified that he twice but Ms. Melo to the ground, and kneed her twice, Ms. Melo made no mention of being 'kneed' and she recalls being put to the ground only once.

[66] The officer included in his notes Ms. Melo's exculpatory remarks, and her accusations that she was being wrongfully arrested and assaulted by him. The inclusion of information that could conceivably cast the officer in a negative light, and support Ms. Melo's anticipated claim of excessive force, is also something I have considered in assessing his credibility.

[67] Mr. Gold argued that all Ms. Melo wanted was a clear understanding of what was going on. P.C. Pallet agreed that the care and control law is a confusing concept, whereas P.C. Bell-Morena's refusal to admit this proposition is a clear example of his ability to rationalize his conduct. A review of the evidence does not support that submission. P.C. Bell-Morena did explain during his in-chief examination that Ms. Melo's confusion about care and control was not unusual and that many people have difficulty understanding that concept.

[68] I find that Ms. Melo was for the most part, a candid witness who was quick to acknowledge limitations in her recollection. For instance, she testified that she did not remember what she did with her keys. She did not recall whether she or P.C. Bell-Morena opened the car door. She believed when P.C. Bell-Morena approached her car, her husband was outside the car speaking to taxi drivers, but admitted he might have been sitting next to her.

[69] Ms. Melo also recalled being put the ground only once during her arrest while being handcuffed next to the police cruiser. However, I find it unlikely that P.C. Bell-Morena walked an unhappy, resistant arrestee to his car without handcuffs, and find it makes more sense that she was handcuffed next to her own car from which she had just been pulled. She was put the ground a second time next to the cruiser. The fact that Ms. Melo recalls being 'grounded' only once, illustrates the frailties in her recall.

[70] However, I find that Ms. Melo was less than candid in denying that she was inebriated on the night in question. With almost twice the legal limit of alcohol in her system, and displaying uncharacteristic levels of verbal hostility towards the police and the drink and dial operator, Ms. Melo's denial appeared self-serving.

Arguments

[71] Mr. Gold argued that P.C. Bell-Morena's act of opening Ms. Melo's car door violated her s. 8 Charter right to be free from unreasonable search and seizure and that the force used by the officer thereafter in arresting Ms. Melo was excessive and breached her right to life liberty and freedom of the person as guaranteed by s. 7 of the Charter. Because the two issues are interconnected in the evidence, I will address both of these Charter complaints together.

[72] The essence of Mr. Gold's argument is that the refusal of PC Bell-Morena to reasonably communicate with Ms. Melo triggered a chain of events which resulted in Ms. Melo's passive resistance, and the officer's excessive use of force. A mere two minutes elapsed from the time the police arrived on scene to the time Ms. Melo was in handcuffs. This short time frame suggests that the officer did not spend sufficient time to listen to Ms. Melo and explain to her the basis for her detention.

[73] Mr. Gold submitted that when the officer first approached Ms. Melo, he had at most reasonable suspicion that a driver was intoxicated. Taking no further steps to investigate, the officer ordered Ms. Melo out of the car. Mr. Gold submitted that P.C. Bell-Morena was obligated to conduct further investigation to determine if Ms. Melo was in care and control of her vehicle at the time, and that merely occupying the driver's seat does not contribute to his grounds. Mr. Gold argues that the presumption only applies at trial, and not to the formation of reasonable grounds.

[74] Moreover, Mr. Gold argued that the officer was obligated to use the wording in s. 254(2) of the Code in exercising his authority. Instead, P.C. Bell-Morena improperly told Ms. Melo to get out of her car for a "breathalyser" test.

[75] Mr. Gold argued that the officer had no legal right to open Ms. Melo's door, and once he did, he ought to have listened to Ms. Melo's explanation that she was arranging a ride. Instead of believing Ms. Melo, he ignored her, and reached for her phone. It was only then that Ms. Melo became upset.

[76] Mr. Gold urged me to reject P.C. Bell-Morena's evidence that he was concerned Ms. Melo posed a real risk of putting the car in motion. Mr. Gold submitted that when Ms. Melo made a motion with her arm, it was not to put the car in motion but to take her phone back. The officer had no right to grab her arm, but once he did, it was only then that his suspicion crystalized into belief.

[77] The Crown countered by arguing that P.C. Bell-Morena had ample grounds to suspect an offence was being committed, and very shortly after his arrival, his grounds were elevated to a belief. In fact, the Crown argued that as soon as Ms. Melo responded to her name being called by P.C. Bell-Morena, the officer would have had reasonable and probable grounds to believe she was in care and control of a vehicle while intoxicated. But contrary to Mr. Gold's assertion, the officer attempted to continue with his investigation.

[78] The Crown argued that by both accounts, the officer did try to explain the care and control law but Ms. Melo was not accepting the proposition that merely sitting behind the wheel of a car, even though she was not driving, could constitute an offence.

[79] The Crown further argued that the officer was not legally obligated to use specific language in making the ASD demand, as long as what was clearly conveyed to Ms. Melo was that she was required to provide a breath sample.

[80] The officer was not required to engage in a lengthy negotiation with Ms. Melo. After having attempted to explain the care and control law and the basis for her detention, and upon being met with Ms. Melo's persistent and forceful resistance, he was justified in pulling Ms. Melo out of the car.

Analysis

[81] The onus of demonstrating a Charter breach is on the applicant seeking Charter relief. However with respect to these two Charter complaints, the onus shifts upon a prima facie showing that the applicant's Charter rights were violated.

[82] In the s. 8 context, where it is shown that a search or seizure was warrantless, the onus shifts to the Crown to demonstrate the police actions were nonetheless reasonable. Similarly, where it has be shown that force was used by the police, and the Crown is relying on s. 25 of the Code to justify the force, the Crown bears an evidentiary burden to prove compliance with the section: R. v. Davis, 2013 ABCA 15, at para. 43; Chartier v. Greaves, [2001] O.J. No. 634.

[83] In this case, Ms. Melo has clearly demonstrated that P.C. Bell-Morena opened her door without a warrant, and used force during her arrest. Accordingly, the burden is on the Crown to both justify the officer's act of opening the car door, and his use of force.

[84] Section 25(1)(b) of the Criminal Code, authorizes police officers to use as much force as is necessary in execution of the lawful duties. In order to invoke the protection of that section, the Crown must prove three things:

i) The officer was required or authorized by law to perform an action in the administration or enforcement of the law;

ii) The officer acted on reasonable grounds in performing that action; and

iii) The officer did not use unnecessary force.

[85] I will deal with the first two elements together. I find that when P.C. Bell-Morena arrived on scene at the Versailles Banquet Hall and observed Ms. Melo behind the wheel of her car, he had at a minimum, objectively reasonable grounds to suspect that she was in care and control of the vehicle after having consumed alcohol. The information provided by the drink and dial service was supplemented by the officer's own observations of a female behind the wheel of a car, in the parking lot of the very banquet hall that was the subject of the complainant's call to the police. Ms. Melo's reaction to the officer calling her name only fortified what were already reasonable grounds to suspect.

[86] Mr. Gold argued that Ms. Melo's position behind the wheel of the car was a neutral factor in the officer's formulation of grounds, and that the presumption in s. 258(1)(a) that someone in the driver's seat of a car is in care and control, operates exclusively in the trial context. In my view s. 258(1)(a) is merely a statutory embodiment of a common sense proposition. The officer's observation of Ms. Melo in the driver's seat, reasonably contributed to the officer's suspicion that she was in care and control of the car.

[87] Having formed objectively reasonable grounds to suspect, P.C. Bell-Morena was authorized to make a demand for a breath sample under s. 254(2) of the Code, which provides as follows:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle …..the peace officer may, by demand, require the person to

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[88] By all accounts, when P.C. Bell-Morena attended at the driver's side of the car, the door and window were shut and communication was impeded. Ms. Melo acknowledged she could not discern what the officer was saying. Mr. Gold cited R. v. Lippett, [2014] O.J. No. 5185, in support of his argument that in opening the car door, P.C. Bell-Morena violated Ms. Melo's s. 8 right. In Lippett, the accused had been randomly stopped at a RIDE check and apart from detecting an unidentifiable odour emanating from the partially open window, the officer who opened the car door had no grounds to suspect the driver had consumed alcohol or drugs. Beninger J. found that the act of opening the car door violated the accused's s. 8 Charter rights.

[89] The facts in Lippett were much different than in Ms. Melo's case. I find that P.C. Bell-Morena's act of opening Ms. Melo's car door fell within the general scope of his power conferred upon him by statute and by common law. I am also satisfied that it was a minimally intrusive but necessary means to facilitate conversation, and was a justifiable use of P.C. Bell-Morena's power: R. v. Mann, 2004 SCC 52, at para. 24; R. v. Waterfield, [1963] 3 All E.R. 659.

[90] P.C. Bell-Morena testified that once the door was open, he instructed Ms. Melo to step out of the car and do a Breathalyzer test. This part also does not appear to be in dispute although Ms. Melo testified that she does not recall hearing the word "Breathalyzer". Mr. Gold argued that the officer was obligated to use the wording from s. 254(2) of the Code in making his demand. I disagree. I am not aware of any law requiring police officers to adhere to a prescribed script in making a road-side demand. What is important is that the demand is understood. In my view using the universally known term "Breathalyzer" as opposed to "approved screening device" in making a demand, only increases the likelihood that the individual would comprehend the nature and purpose of the demand.

[91] It is also not in dispute that Ms. Melo did not want to exit the car. P.C Bell-Morena testified that he asked Ms. Melo to exit the vehicle multiple times and each time she refused, saying she was making "alternative plans". His evidence is consistent with Ms. Melo's evidence that P.C. Bell-Morena was not listening to what she was trying to explain, and she felt compelled to sit in her car and explain herself. It was during this exchange that one more ground was added to the list of grounds, namely the smell of alcohol emanating from Ms. Melo's breath.

[92] Nor is it in dispute that P.C. Bell-Morena reached into the car, removed the cell phone from Ms. Melo's hand and placed it on her dashboard. At this point, Ms. Melo was still trying to convince the officer that she had done nothing wrong, and was arranging a ride. P.C. Bell-Morena was in turn trying to convince Ms. Melo to exit her car. I find that the officer's act of removing the distraction (i.e. the phone) from Ms. Melo's hand, was a reasonable and minimally invasive step to get Ms. Melo's attention. It was while reaching for the cell phone that P.C. Bell-Morena noticed Ms. Melo's watery eyes and flushed face.

[93] At this point, having observed Ms. Melo's watery eyes, flushed faced and having detected the odour of alcohol on her breath, P.C. Bell-Morena's previous suspicion was elevated to that of belief.

[94] The test is whether there were reasonable and probable grounds to believe that Ms. Melo was in care and control of the vehicle while her ability to operate the vehicle was even slightly impaired by alcohol: R. v. Bush, 2010 ONCA 554, at para. 48; R. v. Stellato. Viewed cumulatively, the grounds amply and objectively supported P.C. Bell-Morena's belief in this regard, and accordingly at this stage, he had grounds to arrest Ms. Melo.

[95] I find that throughout this entire period, P.C. Bell-Morena was acting in the lawful execution of his duties and in doing so, he was acting on reasonable grounds. What happens next, brings into the question the third consideration under s. 25(1), namely whether the amount of force used by P.C. Bell-Morena in effecting Ms. Melo's arrest was only as much as was necessary in the circumstances.

[96] P.C. Bell-Morena testified that he grabbed Ms. Melo's arm when she attempted to retrieve her phone from the dashboard and she responded by attempting to close the car door. This was the "game changing" moment that prompted the officer to pull Ms. Melo out of the car. Ms. Melo does not admit to shutting the door. She may or may not have attempted to close the door, or perhaps in reaching for something else, the officer believed she was about to do so. What is clear however, is that the officer had grounds to arrest Ms. Melo, and Ms. Melo was not complying with his direction to exit the car. Ms. Melo testified that she would have eventually complied with the officer's demand. If that were the case, P.C. Bell-Morena would have had no idea that Ms. Melo would eventually accede to his instruction, because by all indications, she was not budging.

[97] At this point, P.C. Bell-Morena pulled Ms. Melo out of the car and onto the ground. P.C. Bell-Morena testified that at the time, he believed there was a risk Ms. Melo was about to put her car into motion. Mr. Gold urged me to reject this evidence. Whether in fact, Ms. Melo was going to put her car in motion is not the issue. It is whether there was a reasonable basis for that concern. I find there was. Ms. Melo was clearly under the influence of alcohol, she was upset at the officer, and shouting at him could be interpreted as demonstrating a lack of good judgment. Combined, these factors support the officer's concern that Ms. Melo might activate her car. Under those circumstances, P.C. Bell-Morena was justified in forcefully removing Ms. Melo out of the car.

[98] Once on the ground, P.C. Bell-Morena put Ms. Melo into handcuffs and pulled her onto her feet. The officer also "knee struck" her twice in the leg while he was escorting her to the cruiser, and put Ms. Melo to the ground a second time near the cruiser. After Ms. Melo kicked him from within the cruiser, he kicked at her legs to get them inside the car before shutting the door.

[99] Ms. Melo was admittedly verbally aggressive towards P.C. Bell-Morena and felt strongly that she was being unjustifiably detained. She did not want to exit her car, and she most certainly did not want to be arrested. Ms. Melo also admitted that when she entered the police cruiser and her head hit the door frame, she expressed her displeasure by kicking towards the officer. I accept the evidence of both P.C. Bell-Morena and Ms. Dosanjh that Ms. Melo similarly displayed her displeasure by struggling and kicking when being escorted to the cruiser.

[100] Though back-up officers had arrived near the end of the arrest process, for most of the time P.C. Bell-Morena's only partner was a civilian member of the police auxiliary. And though not a police officer herself, Ms. Dosanjh had her hands full with Mr. Melo. Accordingly, he was left to deal with Ms. Melo on his own, and a measure of force was required.

[101] I have no doubt that Ms. Melo sustained some injuries during her encounter with P.C. Bell-Morena, however I agree with O'Donnell J.'s comments in his 2014 unreported decision in R. v. Lopez-Vega, at para. 26, that the mere fact of an injury does not itself prove an excessive use of force.

[102] It is possible another officer might have handled the situation differently, perhaps negotiating with Ms. Melo for a longer period of time, or explaining the law of care and control more thoroughly. However, the actions of police officers should not be measured against a standard of perfection, nor should the amount of force used be measured with exactitude: Nasagaluak, 2010 SCC 6, at para 35.

[103] Confronted with a non-compliant, verbally and physically antagonistic, and alcohol impaired individual, I find that P.C. Bell-Morena was justified in using the force he did in his efforts to arrest Ms. Melo. Ms. Melo's s.8 Charter application and her s. 7 Charter application alleging an excessive use of force are dismissed.

Deletion of Surveillance Camera (s. 7)

Evidence

[104] Asked whether he knew there were CCTV cameras around the banquet hall exterior, P.C. Bell-Morena testified that he assumed there were cameras which is why he called the facility a few times in an effort to obtain footage. He said he made multiple attempts to contact the banquet hall.

[105] He testified that this first attempt to obtain footage from the banquet hall was four days after the offence, which was his first day back on shift. He subsequently clarified that the attempt was on December 10th. No one answered his call and he left a voice message. He also recalled calling the banquet on December 20 at 1:58 a.m., and finally, on December 26th, at 9:36 p.m. he made contact with someone who advised him that the camera footage is only kept for seven days.

[106] In cross-examination, P.C. Bell-Morena insisted that he was interested in obtaining the camera footage and agreed there was a chance the whole incident was captured by a camera. When asked by Mr. Gold why he made no attempts between the date of Ms. Melo's arrest and December 10th, he explained he was off work and did not feel he needed to direct another officer to obtain the footage.

[107] In re-examination, he explained that in his experience most places hold on to video for a month to two months and that prior to this incident, he has never encountered a premises that saved footage for only seven days. He also explained that the other officers on his platoon were working the same shift as he was, and asking one of them to assist was not an option.

[108] Ms. Melo was questioned about efforts she made to obtain security camera footage from the banquet hall. She explained that the Monday following her arrest, she contacted the hall and received contact information for the security company. Ms. Melo spoke to someone at the company who confirmed there were cameras at the scene, but who advised her that as a civilian, she was unable to obtain the footage.

[109] On December 12, 2016, Ms. Metcalfe student-at-law for Mr. Gold, sent a letter to the Crown requesting various items of disclosure including any external video footage from the Versailles Banquet Hall. The following day, Ms. Metcalfe sent a letter to the Superintendent of the Airport Division requesting the video footage and emphasizing "this request is time sensitive as surveillance is often lost within 14 to 30 days of the relevant time-period".

Arguments

[110] Ms. Melo has applied for a stay of proceedings on the basis that her s. 7 Charter rights were violated when the police failed to preserve footage from security cameras at the Versailles Banquet Hall. The footage would have provided objective evidence of the circumstances of Ms. Melo's arrest, and its loss has resulted in irremediable prejudice to Ms. Melo.

[111] Mr. Gold argued P.C. Bell-Morena ought to have made greater efforts to obtain the video footage and should have obtained the assistance of another officer when he was off duty. The failure of PC Bell-Morena to call the banquet hall within reasonable hours, demonstrates an unacceptable negligence in obtaining evidence. Moreover the officer waited almost two weeks before he called the banquet hall for the second time. Mr. Gold argued this illustrates a deliberate decision on the officer's part not to follow up on evidence that was relevant to the case.

[112] Mr. Gold argued that if the Crown's position is that the cameras would not have captured relevant activities, it could have obtained a sample video from the banquet hall to support that argument. That was not something the defence could do to support its argument, because apparently, only the police can obtain the footage.

[113] The Crown counters that the necessary starting point for this particular application would be some proof that the video footage of the incident actually existed. As it stands, there is only an assumption that a video camera was directed at the rear parking lot which would have captured the events on December 3, 2017. It is the applicant's onus to furnish evidence that footage existed and that she has suffered real prejudice by its loss.

[114] The Crown argues that P.C Bell-Morena's belief that the footage would be preserved for more than seven days was reasonable and was consistent with defence counsel's understanding as reflected in his correspondence.

[115] The Crown submitted that the real complaint at the heart of this application is that P.C. Bell-Morena failed to adequately investigate the case, which does not give rise to an independent Charter violation.

[116] In response to Mr. Gold's suggestion that the Crown could have provided a sample video from the banquet hall cameras to support its position, the Crown emphasized that there is no onus on a responding party to bring forward evidence from a third party. Ms. Melo bears the onus, and there were at least two routes available to her to obtain evidence in support of her Charter application. One, she could have brought an O'Connor application seeking evidence from the banquet hall or the security company concerning the existence of video footage that might have existed and captured relevant events. Alternatively, Ms. Melo could have subpoenaed someone from either or both companies.

Analysis

[117] An accused's right to Crown disclosure is integrally connected to her right to make full answer and defence both of which are protected by s. 7 of the Charter: R. v. Carosella. A breach of by the Crown of its disclosure obligation, is a breach of the accused's s. 7 Charter rights.

[118] Corresponding with the Crown's duty to disclose, is a duty to preserve all relevant information in its possession. When evidence is lost, the Crown has a duty to explain what happened to it: La, at p. 690.

[119] In considering whether the Crown has satisfactorily explained the loss of evidence, the relevance of the evidence, and the steps the police took to preserve it, are two key considerations. If the police took reasonable steps to preserve the evidence, its loss will not amount to a breach of the Crown's duty to disclose: La, at p.691.

[120] If however, the loss is found to have been the result of unacceptable negligence, the Crown's duty to disclose will have been breached, and the accused's s. 7 Charter rights violated. However, such a finding does not automatically lead to a stay of proceedings: La, in R. v. Bero, at para. 42. Consideration must be given to less drastic remedies available under s. 24(1) of the Code.

[121] In order to justify a stay of proceedings, the applicant must demonstrate that the loss of evidence resulted in such prejudice to her right to make full answer and defence that it cannot be remedied, or that continuing the prosecution under the circumstances would result in irreparable prejudice to the integrity of the judicial system: R. v. O'Connor, at para. 82.

[122] In extraordinary cases, even when the loss of evidence was not the result of unacceptable negligence, but the accused nonetheless suffered irreparable prejudice to her ability to make full answer and defence, a stay of proceedings may still be warranted: La, at p. 693. The fact that the lost evidence makes the applicant's defence more difficult to advance will not warrant a stay of proceedings. Actual prejudice will be made out only when the applicant can demonstrate that she is unable to put forward her defence: R. v. Bradford, at para. 8.

[123] I have reviewed three cases from the Superior Court on the issue of lost evidence and its impact on the accused's fair trial rights: R. v. Heddle, [2008] O.J. No. 2021; R. v. Kish, [2011] O.J. No. 956; and R. v. Dupuis, [2014] O.J. No. 1823. In all three decisions, two key findings were made by the trial judges. First, the evidence was known to exist. Secondly, the evidence was relevant. Stays of proceedings were not entered in any of the three cases, despite the courts' findings that police failed to take basic steps to preserve the relevant evidence.

[124] In another case, R. v. Nkemka, 2013 ONSC 2091, Spies J. in obiter ruled that she would have been inclined to grant a stay of proceedings had she not acquitted the accused on a charge of a sexual assault. The assault had allegedly the occurred in the accused's taxi cab which was equipped with an in-car camera. Spies J. found that the officer-in-charge knew that important footage from the camera likely existed and from personal experience also knew that video would be deleted after three or four days, and yet she deliberately took no steps to preserve the evidence.

[125] In this case, I am unable to find that the evidence existed, let alone that it was relevant. While it has been established there were security cameras at the banquet hall, I do not know where they were located, if they were functioning or whether the cameras would have captured the events in question. In short, I am being asked to evaluate the constitutional impact of the officer's failure to preserve something which I do not know existed.

[126] While the Crown bears the onus of offering an explanation for the loss of relevant evidence in its possession, in my view the applicant must establish that relevant evidence existed in the first place. In this instance it could have been done by subpoenaing someone from the banquet hall and or the security company to attest to the fact that on December 3, 2016, operational cameras were directed at the scene of Ms. Melo's arrest. Alternatively, the applicant could have made an "O'Connor" application for the production of third party records.

[127] Mr. Gold's submission that he would not have been able to apply for a subpoena because he would not be able to meet the "material evidence" threshold, undermines his argument that the Crown and police failed to preserve relevant evidence, and illustrates the speculative basis upon which I am being asked to consider this application.

[128] Residential and commercial security cameras are ubiquitous, and I will refrain from commenting on whether the police should have a positive obligation in each case to make inquiries about the existence of cameras in proximity to alleged offences. However, in this case, it is my view that P.C. Bell-Morena made reasonable attempts to ascertain whether or not footage existed and to secure whatever footage may have existed. He left a message with the banquet hall when he returned back on shift, and thereafter made two or three further attempts which resulted in him learning from an employee of the banquet hall that camera footage is deleted after only seven days. The officer's expectation that camera footage would be saved for longer than seven days was reasonable.

[129] I have not been persuaded that Ms. Melo's s. 7 Charter rights were violated.

Section 9: The "Over-Hold" Argument

Evidence

[130] Ms. Melo completed her breath test at 5:05 a.m. and was thereafter detained until her release from the Airport Division at approximately 10:40 am. Accordingly, she was detained for 4 ½ hours after her breath test.

[131] P.C. Pallett was the designated breath technician who administered the breath test on Ms. Melo. P.C. Pallett testified that that Ms. Melo was transferred into his custody at 4:12 a.m. Ms. Melo provided her first sample of breath at 4:28 a.m. and her second at 4:50 a.m. The tests yielded results of 155 and 139 milligrams of alcohol in 100 millilitres of blood respectively.

[132] P.C. Pallett testified that he observed physical effects of alcohol on Ms. Melo, such as watery, blood shot eyes and the odour of alcohol though Ms. Melo was cooperative and pleasant throughout their interaction. In cross-examination, the officer agreed that Ms. Melo appeared to have no difficulty understanding anything with the exception of the concept of care and control which he added, is difficult for people to understand generally.

[133] P.C. Pallett printed off three original copies of the certificate of a qualified breath technician and the accompanying notice of intention from the Intoxilyzer machine. He signed all three copies and provided them to P.C. Bell-Morena. He also prepared a form 10 and the notice of suspension. Mr. Gold reminded P.C. Pallett that his parting words to Ms. Melo as she was leaving the breath room were "I'm going to bring you out here and work on getting you home". The officer agreed that he was being honest with her.

[134] P.C. Bell-Morena testified that sometime between 5:05 a.m. and 6:13 a.m., he spoke to the sergeant on duty about Ms. Melo's husband who was being held at another detachment. P.C. Bell-Morena explained that they tried to make it more convenient on the Melos by having a taxi to pick up Mr. Melo then proceed to the Airport Division.

[135] At 6:13 a.m. P.C. Bell-Morena served Ms. Melo with the documents. Ms. Melo was at that time lodged in a cell. As P.C. Bell-Morena explained the documents to Ms. Melo, she became upset asking the officer if he "felt like a man to have manhandled her" the way he did. P.C. Bell-Morena also spoke to Ms. Melo about her plans for getting home and suggested a taxi.

[136] Staff Sergeant Andrew Cooper, a 27-year veteran of the PRPS, was the sergeant in charge of the Airport Division on the morning of Ms. Melo's arrest. As booking sergeant, he is responsible for the release procedures. Asked what the practice is with respect to releasing individuals, Staff Sgt. Cooper explained that they have a directive which is essentially a check list, listing such considerations as the person's level of intoxication, their demeanour, and whether their car has been impounded.

[137] Staff Sgt. Cooper testified that in this case, he was aware that Ms. Melo's blood alcohol level was in the "150 zone", and there had been an assault. He also was aware that her vehicle was impounded and believed that arrangements were being made to have her husband come from 12 Division to the Airport Division, and that the pair would return home together. Staff Sgt. Cooper was of the view that 10:40 a.m. was an appropriate release time for Ms. Melo. At 10:42 a.m., before releasing Ms. Melo, he reviewed documents with her to ensure she understood.

[138] Staff Sgt. Cooper agreed with Mr. Gold that he had a duty to release Ms. Melo as soon as possible but explained that based on her blood alcohol levels and agitated state, he made the decision to release her at 10:40 a.m.

[139] Staff Sgt. Ryan Berrigan, a 20 year-veteran of PRPS, was in charge of 12 Division on December 3, 2016 and had dealings with Mr. Melo. It was his opinion that detention was necessary for Mr. Melo's own safety because he was, in the officer's opinion, very intoxicated. It was suggested in cross-examination that Mr. Melo could have been released at 5 or 6 a.m. While the Staff Sgt. was off duty by then, he opined that there was no way Mr. Melo would have been sober enough to release by then.

[140] Ms. Melo testified that following her breath test with P.C. Wood, she felt ready to go home. Ms. Melo recalled that after P.C. Pallet had completed the breath test, they sat her back in the cell area, and she overheard officers strategizing a way to get her home. The officers asked her if they had any one to help her, and she advised that she did not. She explained in cross-examination that her in-laws lived in Brampton, but she did not want to call them. The police asked if she had any money on her, but she did not. Ms. Melo testified that the clutch purse which had accompanied her to the Airport Division only contained her identification and lipstick. Her credit cards were in another purse which was apparently lodged with her husband.

Arguments

[141] Mr. Gold argued that Ms. Melo ought to have been released after her breath test, and her continued detention was in violation of s. 498 of the Code, and Ms. Melo's s. 9 Charter rights. Staff Sgt. Cooper did not personally assess Ms. Melo to determine whether she was releasable, nor did he speak directly to the breath technician who Mr. Gold argued, was of the opinion Ms. Melo was ready to be released as early as 5:05 a.m.

[142] Mr. Gold casts the explanation that Ms. Melo had no ability to get home as a "red herring", and argued that in any event, it is only one factor to consider according to Durno J. ruling in R. v. Price, 2010 ONSC 1898. Moreover, Staff Sgt. Cooper never cited this as a reason for Ms. Melo's continued detention.

[143] In support of his argument, Mr. Gold relied R. v. Lorenzo, 2016 ONCJ 434, and R. v. Rush, 2018 ONCJ 89, where, having found "over-holding" breaches of the accused's s. 9 rights, the trial judges excluded the breath test results.

[144] As to remedy, Mr. Gold argued that as a result of Pino, the breath test results, while seized prior to the over-holding s.9 breach, were nonetheless "obtained in a manner" and ought to be excluded under s. 24(2). Alternatively, if I find that a s. 24(2) remedy is not available, a stay of proceedings should be entered.

[145] The Crown's submissions focussed mostly on the application of s. 24(2) to exclude breath test results in an over-hold context. The Crown argued that I am bound R. v. Cheema, 2018 ONSC 229, in which Barnes J. held that the requisite connection between the seizure of breath samples and the Charter breach was missing in the over-hold context, and therefore a s. 24(2) remedy is unavailable. Barnes J. also held that on the record before him, there was an insufficient basis upon which to find a systemic problem of over-holding by PRPS, and accordingly, he upheld the trial judge's refusal to stay proceedings under s. 24(1).

Analysis

[146] This Charter application brings into play the statutory provisions of s. 9 of the Charter and s.498 of the Criminal Code. Section 9 of the Charter guarantees everyone the right to be free from arbitrary detention.

[147] Section 498(1) mandates the release of an individual who has been arrested without a warrant, as soon as practicable. However, s. 498(1.1)(a) and (b) require the police to keep the person detained where the officer-in-charge reasonably believes that a) the individual's detention is necessary in the public interest (which includes safety concerns) or b) that the person will fail to attend court if released from custody.

[148] If a detention has been authorized by law, including s. 498(1.1), it follows that it was not arbitrary. Conversely, a detention not authorized by law is arbitrary. Accordingly, in addressing an "over-holding" complaint, the Court should examine the basis for the accused's detention and determine whether the officer-in-charge was acting in compliance with s. 498(1.1).

[149] In the summary conviction appeal in R. v. Price, 2010 ONSC 1898, Durno J. agreed with the trial judge, that basing a decision to hold or release an accused solely on the basis of his blood alcohol readings, is too narrow a focus. Durno J. concluded that while the readings should be considered by the officer-in-charge in exercising his or her authority under s. 498(1.1), numerous other factors should also be considered. Durno J. then set out at para. 93 of his reasons, a non-exhaustive list of other relevant considerations.

[150] More recently however, sitting as a summary conviction appeal judge in R. v. Kavanagh, 2017 ONSC 637, Heeney J. revisited the question of whether high blood alcohol readings on their own could constitute a sufficient basis for an accused's continued detention. Heeney J. found that the Court of Appeal's decision in R. v. Sapusak, [1998] O.J. No. 4148, was "clear and binding authority for the proposition that detaining an individual for his own protection for 6 to 7 hours, based solely on readings of 130 mg., does not constitute arbitrary detention.": Kavanagh, at para. 40. Heeney J. concluded that in the circumstances of the particular case, the trial judge's reliance on Price, in light of the binding appellate authority in Sapusak, amounted to a reversible error: Kavanagh, at paras. 42 and 43.

[151] I have reviewed R. v. Lorenzo, 2016 ONCJ 434, and R. v. Bush, the two cases relied upon by Ms. Melo and find they are distinguishable from her case. In Lorenzo, the accused was held for 6 hours after her breath tests. She testified about being cold during her detention and also described how her requests for toilet paper were ignored. Moreover, the accused's boyfriend gave evidence that he attended the police station to pick her up, but was told she was not ready: Lorenzo, paras. 40-44.

[152] The accused in Rush, was held for 8 ½ hours. While he lived out of town and had no one available to retrieve him at the police station, he had money to pay for a taxi. When he was released, he hired a cab to take him to a nearby motel for the night. Moreover, the trial judge found that Mr. Bush displayed no signs of impairment at any point in his interactions with the police. In fact the arresting officer admitted that he would have been unable to make the Intoxilyzer demand in the absence of the failed ASD test.

[153] In the present case, I find Ms. Melo did display signs of impairment which were mostly manifested in her physical and verbal responses to P.C. Bell-Morena. As well, unlike the accused in Lorenzo, and Bush, she had no one available to pick her up, and until her credit cards were transported to the Airport Division along with her husband, she had no means to pay for transportation.

[154] Though Staff Sgt. Cooper testified that his decision to detain Ms. Melo until 10:30 a.m. was based on her blood alcohol levels and state of agitation, it is clear from the evidence of the Staff Sgt. Cooper, P.C. Bell-Morena and Ms. Melo, that Ms. Melo's inability to arrange a ride home was also considered.

[155] This is not a case where the police displayed indifference towards Ms. Melo. In fact according to Ms. Melo and P.C. Bell-Morena, immediately following Ms. Melo's breath tests, officers were discussing means by which to get Ms. Melo home. The officers asked her if she had any one available to pick her up or if she had money. Ms. Melo had neither. Waiting for the arrival of her husband and her credit cards so that Ms. Melo could pay for their transportation home together, was an eminently reasonable solution under the circumstances.

[156] I find that the decision to detain Ms. Melo for 4 ½ hours following her breath tests was based on a combination of factors, which included her blood alcohol levels, her level of impairment, her recent state of agitation, and the fact that she had no immediate means to travel home. The basis for her detention was in compliance with s. 498(1), and was therefore not arbitrary. Ms. Melo's s. 9 Charter application is dismissed.

[157] Having dismissed Ms. Melo's Charter application, it follows that the results of her breath tests are admitted into evidence.

The Charges

"Over 80" Care and Control

[158] Ms. Melo is charged with having had the care and control of a vehicle while her blood alcohol level exceeded the legal limit. Having admitted the breath readings and finding as I do that the Crown can rely on the statutory presumption in s. 258(1)(c)(ii) of the Criminal Code, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Melo had an excess amount of alcohol in her system when she was found behind the wheel of her car.

[159] The next question is whether the Crown as proven that Ms. Melo was in care and control of the vehicle. In R. v. Boudreault, 2012 SCC 56, the Supreme Court of Canada confirmed, that in proving a care and control charge, the Crown must establish these essential elements:

1. an intentional course of conduct associated with a motor vehicle;

2. by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

3. in circumstances that create a realistic risk of danger to persons or property.

[160] The Crown has three routes to prove the offence:

1. By proving the accused was driving while impaired—because impaired driving is included in the offence of care and control.

2. By applying the statutory presumption in s.258(1)(a) of the Code.

3. By proving that the accused was in de facto or actual care and control which necessarily involves a risk of danger as an essential element of the offence.

[161] In this case the Crown relied on the presumption based on the undisputed evidence that the Ms. Melo was found behind the wheel of Acura. That presumption as it relates to this case, reads as follows:

258 (1) (a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle….., the accused shall be deemed to have had the care or control of the vehicle unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, in motion;

[162] In this case, I find that Ms. Melo has rebutted the statutory presumption by tendering evidence which has convinced me on a balance of probabilities that she did not intend to put her vehicle in motion. I accept Ms. Melo's evidence that she had made prior, non-refundable arrangements to be picked up by the drink and dial service, and missed her ride only because she lost track of time. Ms. Melo explained that she occupied the driver's seat simply to get out of the cold, and to make the calls to the drink and dial service. I find that at the time she encountered P.C. Bell-Morena, she was in fact making efforts to reach someone at the service, and convince them to re-attend the banquet hall. At that moment, she was not intending to drive.

[163] The rebutting of the presumption does not however, lead inexorably to an acquittal. A rebuttal of the presumption puts the onus back on the Crown to prove that the accused was in de facto or actual care and control of the vehicle. In other words, did Ms. Melo's position behind the wheel of her car create a realistic risk of danger to persons or property?

[164] In R. v. Boudreault, 2012 SCC 56, at para. 45 and 48, a majority of the Supreme Court confirmed that a "realistic risk" of danger is an essential element of the offence of care and control, but at the same time, a "realistic risk" is a low threshold. The court described the threshold as follows:

I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.

[165] Having found that Ms. Melo rebutted the statutory presumption by furnishing evidence of an unqualified intention not to drive, my focus is now on whether the Crown has established beyond a reasonable doubt, a realistic risk of danger arising either from Ms. Melo either changing her mind about driving, or inadvertently placing her car in motion.

[166] In R. v. Szymanski, at para. 93, Durno J. set out a non-exhaustive list of factors that may inform a court's conclusion as to whether a risk of danger has been established. I have carefully reviewed and considered each one of those factors.

[167] Ms. Melo having testified, my consideration of whether or not the Crown has proven this charge (and the other charges), is guided by the principles in R. v. W.D.. In other words, if I believe the exculpatory evidence relating to Ms. Melo, I must find her not guilty. Even if I do not believe the evidence, but I am nonetheless left in a reasonable doubt, I must acquit. Third, even if not left in doubt by the exculpatory evidence, I must ask whether on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by the evidence of Ms. Melo's guilt.

[168] Ms. Melo steadfastly maintained that she would not have changed her mind about driving, even if she was unable to persuade the drink and dial service to return. The taxi cabs which were parked in the same parking lot provided a viable alternative. In fact, Ms. Melo testified that her husband had been negotiating with cab driver prior to her arrest in their efforts to find a way home.

[169] I was not entirely convinced by Ms. Melo's explanation as to why she chose to occupy the driver's seat while making phone calls, as opposed to the passenger seat which she regularly occupies. Her decision to get behind the wheel of the car hints at the possibility that she might have changed her mind and decided to drive. However, her evidence has raised a reasonable doubt in relation to that risk.

[170] With respect to the risk created by the inadvertently putting the car in motion, other than the fact that the key was in close proximity to Ms. Melo, there was no evidence about what deliberate acts would have been necessary to activate the engine and put the car in gear.

[171] In conclusion, I have a reasonable doubt about whether Ms. Melo's actions on December 3, 2016 created a realistic risk of danger to persons or property. Accordingly, I find her not guilty on the "over 80" charge.

Impaired Care and Control

[172] My findings on the care and control issue are also dispositive of the impaired charge, and accordingly, I find Ms. Melo not guilty on that charge as well.

Resisting Arrest

[173] The offence of resisting arrest under s. 129 (a) of the Criminal Code, requires the Crown to prove that:

1. a peace officer was acting in execution of his duty,

2. Ms. Melo was aware the person was a police officer engaged in the execution of his duty; and

3. She resisted his efforts to execute his duty.

[174] The validity of P.C. Bell-Morena's initial ASD demand and Ms. Melo's arrest is to be determined based on the grounds which were apparent to P.C. Bell-Morena at the time the demand and arrest were made: R. v. Biron. Despite having found Ms. Melo not guilty of the driving offences, the grounds upon which the demand was made, and upon which she was ultimately arrested were reasonable. The Crown has proven this element of the offence.

[175] There is also no doubt that Ms. Melo knew that the officer was acting in execution of his duty. Though Ms. Melo may have disagreed with the officer and felt strongly that she should not be required to provide a breath sample, she never denied knowing P.C. Bell-Morena was enforcing the law when she encountered him.

[176] Finally, Ms. Melo admitted that she felt compelled to sit in her car and negotiate with the officer, notwithstanding she knew he was instructing her to get out. I find that Ms. Melo's refusal to get out of the car in the face of a lawful demand, constitutes "resistance" within the meaning of s. 129 (a). Though that alone would justify a finding of guilt, I find that Ms. Melo's resistance was not limited to her refusal to get out of the car, but continued throughout the arrest process.

[177] I disbelieve Ms. Melo's evidence that she was not struggling with P.C. Bell-Morena once he pulled her from the car, and it does not raise a reasonable doubt. Already simmering with anger and frustration at the drink and dial service when P.C. Bell Morena approached, Ms. Melo's mood did not improve as the events unfolded. Ms. Melo's evidence that she passively (without physical resistance) submitted to the officer's attempts to arrest her, is completely at odds with her level of anger and belligerence. It is also inconsistent with the police evidence which I do accept.

[178] The Crown has proven beyond a reasonable doubt that Ms. Melo resisted a police officer who was acting in the execution of his duties. I find Ms. Melo guilty on that count.

Assault with Intent to Resist Arrest

[179] I have no doubt that the actus reus of the offence has been proven. No one disputes the fact that Ms. Melo kicked P.C. Bell-Moreno. However, Ms. Melo testified that hitting her head on the doorjamb of the cruiser caused her to lose all control of her senses. Enraged, she thrashed her legs in the only direction she could, which caused her to strike the officer. Ms. Melo was not challenged on having hurt her head as she described, and two of the photos she filed as exhibits offer corroboration for such an injury.

[180] Applying force out of reflexive action is not an assault. In the arrest context, even using injury-causing force in an attempt to physically disengage from the police may not make out an assault police charge: R. v. Wolfe; R. v. Hickey, [2004] O.J. No. 199. Accordingly, if I believe Ms. Melo that she reflexively kicked out in the direction of the officer, not actually meaning to strike him, I must acquit.

[181] While I have doubts about Ms. Melo's explanation that she mindlessly kicked in the direction of the officer, it nevertheless leaves me in a reasonable doubt about her intention. I find Ms. Melo not guilty of assault with intent to resist arrest.

Released: May 3, 2018

Signed: Justice I. Jaffe

[1] The obstruct charge against Mr. Melo was not pursued by the police or Crown.