Court Information

Court File No.: Toronto 4811-998-16-15009065-00 Date: 2018-07-01 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Siobhan O'Shea

Before: Justice S. Ray

Heard on: February 14, 2018 and April 17, 2018

Reasons for Judgment released on: July 1, 2018

Counsel

For the Crown: A. Leggett

For the Defendant Siobhan O'Shea: J. Greenwood and F. McNestry

Judgment

Ray J.:

Introduction

[1] Siobhan O'Shea has been charged with operating a motor vehicle while her ability to drive was impaired by alcohol and refusing to provide a breath sample contrary to sections 253(1)(a) and 254(5) of the Criminal Code. The Defence has filed a Charter application alleging violations of sections 7, 8, 9, and 10(b).

[2] The Defence says that O'Shea was deprived of her right to security of the person in a manner that was not in accordance with her right to fundamental justice, when police arrested her for impaired driving and missed obvious signs that she was mentally ill. They violated her security of the person by not immediately seeking medical attention and by failing to treat her with dignity and respect. For these reasons, it is alleged that section 7 of the Charter has been breached. It is also alleged that the approved instrument demand was not made as soon as practicable, and was thereby unlawful and violated section 8. It is also argued that the arresting officer did not have reasonable and probable grounds for arresting O'Shea thereby violating section 9. And finally, it is submitted that O'Shea was denied her section 10(b) rights to counsel.

The Factual Foundation: A Heartbreaking Story

[3] It is not contested that the accused O'Shea has been diagnosed with bipolar disorder, post-traumatic stress disorder, severe depression and anxiety, for which she takes medication. She has struggled with mental health issues since her early teens. She has three grown up children. On November 19, 2016, she was living in her car with her therapy dog, Fiona, after suddenly leaving a violent, abusive situation. Fiona was essential to her well-being. Prior to living in her car, she had been living in a storage space filled with the things that were now stored in her car. She couldn't live in a shelter, because they would not take dogs. She had some community support and was working with them to find housing, but so far there had been no success.

[4] O'Shea attracted the attention of two police officers on November 19, 2016, who noticed her driving very slowly and hesitantly, and followed her. The driving conditions were normal, according to one officer, no precipitation and the roads were dry; it was late at night and traffic was light. According to the other officer, traffic was medium to moderate, and road conditions were wet. It may have been slush or partial snow. His evidence was consistent that she was driving slowly. He described it as "driving almost at a crawl" or "at a slow crawl." Officer Fraracci, who was driving, sounded the horn, which did not attract O'Shea's attention. He continued to follow her activating his emergency equipment, to which she also did not respond. She turned a corner and eventually stopped, all the time driving slowly and hesitantly. After stopping, the driver exited her car and then got back in. Fraracci approached the stopped vehicle and observed a female driver by herself. He observed a bottle of wine on the floor of the passenger's seat, then asked the driver to roll down her window, but instead she opened the door. As the door opened, he could smell a really strong odour of alcohol. It was his observation that she had a blank stare on her face and her eyes were glassy. He testified that she didn't respond to his questions. That coupled with the driving behaviour including her lack of response to the honking horn and the scout car lights led to his conclusion that she was impaired by alcohol. He testified that based upon these grounds, he arrested her.

[5] The slow and hesitant driving can be seen on the police car video, which also shows Fraracci and his partner, Officer Sutton, approaching the vehicle, speaking to the driver, and arresting her for impaired driving. This was loudly, emphatically, and clearly stated, and was easily heard and understood by me when the video was played in court. She yelled, "No," upon arrest, and loudly and clearly expressed concern about her dog. She was asked for her driver's licence and kept talking about the dog. She was told the dog was fine. As she was arrested, Sutton roughly pulled her away from the car and she fell, possibly because she was resisting. The manner in which the two officers communicated with her right from the outset was rough and impatient. Very quickly after the door opened and communication started, she was arrested. The car door was left open. She asked again about the dog and was told the dog was going to be fine. This is all clear on the video.

[6] A voice is heard saying on the video that the wine bottle was half full. The testimony of the officers conflicts with respect to how full the wine bottle was, but both counsel agreed that the best recollection of the officers was that the bottle was two thirds full. It looked to me on the video like it was two thirds or three quarters full. It looked like there was liquid in it just up to the top of the bottle label. Fraracci testified that there was a McDonald's cup in the cup holder that had wine in it. O'Shea testified in court that she had consumed a "big swig" of this wine. Both the bottle and the cup were seized by Sutton and can be seen on the video.

[7] The officers can be seen on the video continuing to treat O'Shea in a rough and impatient manner, clearly exasperated by what they perceived as a failure by her to cooperate. She kept pleading for her dog. They kept pleading with her to help them out by standing up and swinging her legs into the cruiser seat. They kept telling her the dog was fine and in her car. She resisted getting into the police cruiser, she tried to get out. She was focussed on the welfare of her dog. She asked if she could please have her dog. She is heard saying that she needed help with her pants, which have apparently fallen some distance down her legs, but it is not clear how far down they fell, and the viva voce evidence conflicts on this point.

[8] O'Shea is heard continuously on the video lamenting that her pants are hurting, pleading with the officers to let her have her dog, and asking for information about her dog. A voice is heard firmly but politely explaining, "Ma'am, here's what's going to happen … we have to read stuff out of a book and you have to listen," but she keeps on talking. Fraracci explains, "I am a dog lover, my partner is a dog lover … we can't bring the dog in …," I believe they were trying to explain they couldn't bring the dog into the cruiser. A voice is heard on the video saying that they needed to take care of her first, then take care of the dog. The officers behaved on the video tape as if they thought that this dog was a pet, and did not realize that it was a therapy dog. This is confirmed in the viva voce evidence.

[9] On cross-examination Fraracci agreed that he knew what a support dog was, there were different kinds of support dogs, and he has been trained in the general definition of a support dog. He agreed that O'Shea said that this dog was her support dog. Here is where he missed an important red flag. It should have been rather obvious to him that O'Shea had a heightened level of upset emotion over leaving the dog and that it was entirely plausible that she resisted going to the cruiser because she did not want to leave the dog. He agreed that as she resisted being pulled towards the cruiser, she said, "no, my dog." But he maintained that it was fairly normal that people he arrested try to pull away from him and don't want to get into the scout car, and that she fell because she was drunk, not because she was resisting the pull, and she was being pulled anyway. Sutton also agreed that "the dog was her priority." Within the context of O'Shea's unusual fixation over the dog, once Fraracci heard her say that this was a support dog, it should have triggered actions on his part that he himself described near the end of his testimony:

I've never, to be honest, had the experience of having a person with a dog with, say – for example, a seeing-eye dog or whatnot. And if that had been the case and I had had that knowledge, that would have been something I would have called a sergeant about and said, "Hey, this – this person is telling me that this is a – a dog for medical or therapy purposes. What are we going to do here? What are our options?"

[10] The officers also testified that they did not know O'Shea was bipolar or otherwise mentally ill. Sutton clarified on cross-examination that it did cross his mind that she was experiencing a mental health crisis "to an extent," and he explained that, "A lot of people utilize substances to deal with various mental health crises or incidents in their lives." He maintained that based upon his experience, this was definitely intoxication by alcohol. Sutton replied, "No," when he was asked, "If you knew that she had a mental health diagnosis, a severe anxiety and bipolar disorder, would that have changed your view of how you dealt with her that night?" For reasons that I shall explain later, I found this answer very telling.

[11] It was very difficult for the police to read and explain to O'Shea her rights to counsel because she was not listening or following instructions, only lamenting about her pants and wailing about her dog. Fraracci is finally heard loudly and clearly reading her rights to counsel, following which she expressed the wish many times to talk to her lawyer, and she continued to say she needed her dog. She provided the name of her lawyer, Geoff Laplante, many times and clearly. This was unmistakable on the video. Somehow in the midst of all this pandemonium Fraracci managed to read the secondary caution. She expressed the wish to call her lawyer herself, to speak to him "directly." She was told very pointedly, "No, we will call her." It can be seen on the video that the officers try to find the phone number of Laplante and they remark that the phone is dead. They find out that O'Shea has a daughter named Kaitlin, whom they intend to contact. Kaitlin will be told, they explain, that the dog will be with animal services and Kaitlin can go there and pick the dog up. Sutton testified that these calls were made when they got to the station. O'Shea can be heard protesting that Fiona will not be okay with animal services and Fiona will not be okay without her. What she says is not responsive to simple questions like, "What's your name, Ma'am?" She speaks incessantly about her pants, the dog, and the necessity that she speak to her lawyer. This is all clear on the video.

[12] I can clearly see from the video that during all this time, it was very difficult for the police to interject and read the approved instrument demand. Sutton finally manages to squeeze it in at what appears to me to be the first available opportunity, in between all of her loud and clear talking and crying. The complaining continues as she explains she can't pull her pants up with handcuffs on, she can't talk to her lawyer while handcuffed, and she feels humiliated. At a certain point she settles down, answers questions about her daughter's address and some other information, and then quietly sobs. I saw all this for myself on the police car video. The officers speak to her more kindly and explain more patiently once she settles down. She says she is upset, scared, and her arms hurt. She keeps asking about the dog. They explain again, and she finally says thank you. At the police station, a female police officer comes to the car and helps her with her pants. This can clearly be seen and heard on the video.

[13] I personally observed on the car video that O'Shea was breathing well, talking loudly and incessantly, taking in deep gulps of air, crying a lot, and her eyes were wet and shining in the camera light. I could see tears on her face. She does not say on the ride to the station that she cannot breathe. This was a point of disagreement among counsel, but they ultimately agreed after we watched the car videos for the second time that she did not say this on the ride from the roadside to the police station.

[14] After breath testing O'Shea was taken to 14 division "to sober up" in a holding cell. During this car ride she said her arm hurt, she wanted her dog, she took big breaths, she said the cuffs were really tight, she was really in pain, she felt like vomiting, she asked for some air more than once, she said she couldn't breathe more than once, and she wanted the windows rolled down. She was told they didn't believe she couldn't breathe. Fraracci explained in his viva voce evidence that he did not believe she could not breathe, because she was very talkative the entire time from the start and "when somebody is talking that much without stopping that's a good indication to me that they have no trouble breathing." She was told the windows didn't roll down, the vents were on, and they would be at 14 division in 5 minutes. Fraracci admitted on cross examination that he became aware after the fact that the EMS was called to the station and O'Shea was taken to Toronto Western Hospital. It was the opinion of his colleagues that she did need medical attention.

[15] Fraracci testified that after he read O'Shea her rights to counsel and obtained her cell phone, which he discovered was dead and he couldn't use it, he was trying to identify her. He testified that she didn't give them a driver's licence initially and I saw for myself on the car video that she did not answer the question, what is your name? Fraracci testified that they identified her by running the licence plate of the car and finding information with a photo that identified her, which took about 20 minutes. They called other officers to the scene to help with arrangements for towing the vehicle and obtaining the assistance of animal services. It also seems that the dog got out of O'Shea's vehicle at some point, and kept running around the car. Sutton pursued the dog for a few laps around the car, and was eventually able to get it back into O'Shea's vehicle.

[16] Fraracci further testified that O'Shea was not assisted with her pants by the male officers because it was not appropriate for them to manipulate a female prisoner's pants, which is something that a female officer should do. Sutton expressed the same preference and also added that in the back of the cruiser he would not be concerned about anything being seen. Both Fraracci and Sutton testified that contact with Geoff Laplante was not facilitated at the roadside, because privacy for the call could not be ensured.

[17] Fraracci testified that they arrived at Traffic Services at 12:13 a.m. on November 20th, and she was paraded at 12:30. It was between 12:13 and 12:30 that the female officer came to help O'Shea with her pants, and this can be seen on the video taken at the sally port to the station. Fraracci took responsibility for trying to contact O'Shea's lawyer. He attested to making four attempts. He used the internet and googled the name she had given him, Geoffrey Laplante, North Bay. He got two numbers, an office number and an after-hours number, a cell phone. So at 12:50, he contacted the cell phone number. He left a voicemail, and he was confident that the number was correct because this name was confirmed on the voice recording. At 12:52 he called the office number and left a voicemail. He tried two more times and left messages on the cell phone. He told O'Shea more than once that his voicemails had not been answered and offered her the option of speaking to duty counsel, an option that she did not wish to exercise. He did not give her the option of speaking to a lawyer other than Mr Laplante. He only offered her duty counsel. Sutton claims that he gave her the option of speaking to another lawyer. He testified that he said, "Okay now we need to know, do you want to speak to duty counsel, is there another lawyer that you want to get in contact with?" And she replied, "Where's my dog?" But his testimony on cross-examination was more consistent with that of Fraracci, when he said "we went back in and told her that we couldn't get a hold of her lawyer, and offered duty counsel."

[18] At 1:36 Fraracci advised O'Shea that she had to comply with the breath demand that was made at the scene by his partner, Sutton. She did not clearly answer yes or no the first time and again started talking about her dog and her lawyer. The second time she did not answer. He simply did not get a clear answer. Sutton testified that she said, "I'm not refusing, but where's my dog?"

[19] O'Shea testified that on Friday, November 18th, she slept in her car overnight at Walmart parking lot. She had been trying to earn some money doing food deliveries that day. She didn't sleep much that night, because a friend who would usually sleep in the car beside her had moved to accommodation that she found outside Toronto. She was all alone, hadn't slept much, and woke up shaky and not very well. She went to work. She worked from around lunch time until around 11 p.m., and then drove to her daughter's place hoping that she could come in. She spoke to her from her phone inside the car, which was parked across the street. Her daughter said it was a bad time, and she didn't explain the predicament that she was in. She became very upset, was crying, and started to feel overwhelmed. She had a cooler in her car, which contained a bottle of wine. She poured it into a coffee cup, and "took a big swig of the wine," and then started driving to look for a place to park overnight. She found a spot on a side street and tried to parallel park. There was a car behind her that she did not know at the time was the police. She could not park, because the car behind her was too close. So she pulled ahead and turned onto another side street, which is where she was stopped by police.

[20] O'Shea testified that when she was stopped by police, she did not realize at first that they were pulling her over. She was shocked and fell apart. She worried about her dog, who had left the car. When the police questioned her, all she could think about was the safety of the dog. She probably had difficulty finding her paperwork, because there were so many things in her car. She was upset, crying, feeling weak, sick, and dizzy. She was not well. Fiona, her therapy dog, was outside the car, and she was "really just everything that" she "had left at that moment." Fiona was all she could think about. She recalls the two officers approaching the car and saying right away, "You're under arrest." She was shocked, scared, didn't know what was going on, had a mental breakdown, and just was not well. She was feeling weak and was worried about her dog, who was outside the car, running around. She fell when she was trying to get to her dog and she was being pulled: "It was like a tug back and forth and I fell." She testified that she did not feel unsteady on her feet at that time, but she was starting to feel really weak and she was having a panic attack. She testified that she told them she could not breathe and that she was feeling really sick, but I did not hear this on the car video, when it was played before me in court. She did not cooperate by getting into the police cruiser, because she was worried about her dog. She was wearing baggy pants, and she believes that during the earlier tugging and pulling her pants came down. She wanted to pull them up, but the police would not take the handcuffs off. She testified that she remembered asking to speak to her lawyer, Geoff Laplante, right away, but she did not recall whether this was before or after rights to counsel were read. O'Shea testified that "very soon after they arrested me," they advised her of her rights to counsel. She asked right away to speak to Geoff Laplante from North Bay. She wanted to get the number off her phone and call him. The officers told her that her phone was dead. She had a charger, but she wasn't sure when she testified if she told them she had one. She wanted to speak to Geoff Laplante in particular because:

I trusted him and I've known him since high school. And he lives in North Bay. But I thought he could help me with the dog and figuring everything out because I didn't know what was going on at that point in terms of I was – I was having a panic attack and Geoff specializes in mental health issues. I didn't think that the officers really understood what was – that I was struggling.

[21] O'Shea testified that she progressively got worse. She felt like she couldn't breathe, that maybe she was going to die, she was just not able to cope, she was panicked, and she was having a breakdown. She is not sure whether she was read a breath demand at the roadside, but she does remember it at the station. She did not speak to Mr Laplante. The officers told her that they called him. She does not remember being offered the opportunity to speak to duty counsel or anyone else. She understood that they had called Mr Laplante and that they were waiting for him to call back. She didn't feel that anyone was hearing what she was saying. She didn't think she could explain what was happening to her. She had known him for a long time and she felt that he could help. She was never told that if she didn't speak to him, she couldn't wait, or that she would be charged. She did not understand that this was happening. After she was charged with refusing to provide a sample, she was taken to another place and put in a jail cell. She was taken to a hospital from there, she believes, because her blood sugar was dangerously low and she was not responding. She testified that she remembers being put in the jail cell and waking up in hospital.

[22] On cross examination O'Shea explained that it was her understanding that her car was being towed with her dog in it. Her car was her home. She believed that her home was towed. Her home and her job were all being towed away. Without her car she couldn't earn money by doing deliveries. She didn't have her car. She didn't have her therapy dog. It had all been taken away. She did not think that the duty counsel could help her because they didn't know her, they didn't know her mental health issues, she didn't know them. They hadn't been able to help her before. She trusted that Mr Laplante could help her with the whole situation. Duty counsel could not help her with the things that she needed help with at that time, which were her dog, the car, having nowhere to stay, and no job. She agreed on cross examination that she understood the concept of duty counsel, and she knew it was a free lawyer. She explained that she needed "bigger help" than the service that duty counsel could provide. She believed she had the right to speak to the lawyer that she wanted to speak to. She didn't understand that she wasn't allowed to wait until Mr Laplante called. She didn't understand that she couldn't speak to her lawyer before providing a breath sample. If she couldn't speak to Mr Laplante, she would like to have spoken to someone other than duty counsel.

[23] On cross-examination O'Shea agreed to reasonable suggestions. She confirmed significant parts of the police testimony. When asked whether she recalled being offered duty counsel, she replied, "I'm sure they must have." She agreed that there were some things that she did not remember, and it is reasonable that she did not remember these things given the context. Her perception of what was happening to her makes sense given the emotional breakdown that she was having, which she explained very clearly in her testimony, and which I could see for myself on the police car video tapes. She has insight into her mental condition, with which she has suffered since her teen years. Everything that she said made perfect sense given the explanations that she has provided, her illness, her experiences during the days prior to her arrest, and what her immediate concerns were at the time, her dog, her car, her impending loss of her home and her employment, everything that she had. She does not deny that she resisted being pulled from her vehicle into the police vehicle. She provides a very understandable explanation for this behaviour.

[24] O'Shea was a very credible witness. Her evidence confirms most of what the officers said, and for this reason their evidence was also for the most part believable. A good portion of all of the viva voce evidence is confirmed by the police car video. She was clearly provided the reason for the arrest at the outset, read her rights to counsel, cautioned, and read the breath demand. She does not recall this detail with particularity, but I can rely on the video. The weakness in the evidence of both officers is that they did not agree to very reasonable suggestions that were put to them on cross-examination even after having their memories refreshed with reference to the police car videos. I go back to the very telling attitude noted in paragraph 10, above, that Sutton displayed when he replied, "No," to the question, "If you knew that she had a mental health diagnosis, a severe anxiety and bipolar disorder, would that have changed your view of how you dealt with her that night?" He still insisted with certitude that her behaviour was definitely intoxication by alcohol, as did Fraracci, who also testified that it was normal behaviour for people who are being arrested to pull away, and his answer remained unchanged when he saw for himself on the video that O'Shea was saying "my dog" as she was pulling away (see paragraph 9, above). The officers formulated the opinion very quickly after stopping O'Shea that she was driving while impaired by alcohol, and she was almost immediately placed under arrest. I saw this for myself on the police car video, and it is confirmed by their viva voce evidence. They were so convinced that intoxication was the complete explanation for her behaviour that they developed tunnel vision and a confirmation bias, and missed rather obvious red flags that O'Shea's behaviour was more than just "whiny" and engaging in an "emotionally charged alcohol type conversation" using "emotionally disoriented" speech, which is how Sutton described it in his evidence detailed in paragraph 10 and footnote 15, above.

[25] Fraracci admitted on the witness stand that O'Shea said the dog was a therapy dog. Her overall fixation over the dog and its welfare and her reaction to being separated from the dog coupled with her statement that the dog was a therapy dog should have raised a huge red flag in the minds of the officers. Sutton displayed frustration on the witness stand when he recounted how she would ask about her dog, when asked whether she wanted to speak to a lawyer (see paragraph 17, above). O'Shea's fixation over the dog should have raised a red flag that this was more than a pet, it was a therapy dog. Fraracci's concern about allowing the dog in the police cruiser was that dogs can be unpredictable. He should have informed himself about whether therapy dogs are trained not to be unpredictable, and he could have made precisely the inquiries about options for dealing with medical or therapy dogs that he described in paragraph 9, above. I had the opportunity of viewing the police car videos for myself, and I do not find that O'Shea's distress can reasonably be attributed to an "emotionally charged alcohol type conversation" and the use of "emotionally disoriented" speech.

[26] Fraracci candidly admitted in his testimony, referred to above in paragraph 9, to a lack of experience in dealing with seeing-eye or therapy dogs in an arrest situation. His training seems to have been limited to some education in the general definition of a therapy dog. He was not questioned on whether or not this schooling on the general definition of a therapy dog included instruction on how therapy dogs are trained and certified, and how one would verify whether or not an animal believed to be a therapy dog really is one. Do they wear a tag? Do they wear anything that would serve to identify accurately and easily that they are therapy dogs? Seeing-eye dogs are easily identifiable. We can all recognize one. Is there an easy and accurate way to identify whether or not an animal is a therapy dog? To be clear and for the purpose of this case, I accept O'Shea's evidence that Fiona was a therapy dog. Fraracci was not questioned on whether his training about the general definition of a therapy dog gave him any understanding of whether therapy dogs are screened or trained to be unreactive, and whether or not it would really be unsafe to place one in a police cruiser with a detainee, and whether a therapy dog can be expected to calm the detainee down enough to provide answers that are responsive to questions asked, and provide a breath sample. Fraracci's concern seems to have been that if the dog were a pet, it could be unpredictable. There is no evidence before the court as to whether or not therapy dogs are screened or trained to be unreactive, such that it may not have been risking a dangerous situation to give O'Shea her dog, indeed, this may have been of some assistance to the officers. Both officers showed a lack of training and insight into how to handle a mentally ill detainee, and seemed to have simply assumed that it would be inappropriate to let O'Shea have her dog.

Has O'Shea been deprived of life, liberty, or security of the person in a manner that does not accord with the principles of fundamental justice thereby breaching section 7?

[27] Section 7 of the Charter states that, "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." If I understand correctly, the alleged Charter breach in this case is that O'Shea was deprived of her security of the person, when the police missed obvious signs that she was mentally ill. They developed tunnel vision, when they saw an open bottle of wine and a cup in the holder of her car and smelled alcohol. They did not turn their minds to the fact that she may not be impaired, and that she may be experiencing a mental health crisis. They violated her security of the person by not immediately seeking medical attention and by failing to treat her with dignity and respect. According to the written amended application filed, the remedy sought appears to be exclusion of evidence of impairment including video evidence, the approved instrument demand, and evidence of the applicant's refusal to accompany a peace officer for a breath sample. No authority was cited for the proposition that failure by a police officer to seek medical attention for a suspect in an investigation breaches the right to security of the person nor was any relevant principle of fundamental justice identified with authorities for the suggestion cited.

[28] The task of the court when a section 7 violation is alleged has been articulated by the Supreme Court of Canada as follows:

Where a court is called upon to determine whether s. 7 has been infringed, the analysis consists of three main stages, in accordance with the structure of the provision. The first question to be resolved is whether there exists a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests. The second stage involves identifying and defining the relevant principle or principles of fundamental justice. Finally, it must be determined whether the deprivation has occurred in accordance with the relevant principle or principles … Where a deprivation of life, liberty, or security of the person has occurred or will imminently occur in a manner which does not accord with the principles of fundamental justice, a s. 7 infringement is made out.

[29] The right to life is legally defined. "[T]he case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly." The facts in this case do not support a finding that engages the right to life. I do not find on the facts before me that the state action here, that is any action by the police in this matter, imposed or increased O'Shea's risk of death. I saw for myself on the car video tapes that she was talking and breathing very well. There is evidence before me that she was diagnosed with mental illness, which she suffered from since her teen years. She had insight into her medical condition and she knew the symptoms of a panic attack and mental breakdown. I accept her evidence that this is what she was experiencing, and that she may have required medical attention, but I do not find that there existed an increased risk of death at the time she was in the custody of Fraracci and Sutton. I do find on the evidence that her liberty interest was engaged. A quick conclusion had been reached by the officers that she was definitely experiencing intoxication, and they had witnessed her driving. She was arrested and faced the prospect of detention, breath testing, prosecution, conviction, sentencing including potential for a sentence of incarceration. The signs that she was having a mental episode, including a blank stare and failure to be responsive on initial contact with Fraracci, appeared early in her interaction with the police, and the officers overlooked the red flags that she may have been having a mental health crisis rather than experiencing intoxication by alcohol.

[30] The case law on security of the person does include imminent deprivations of medical or psychiatric treatment, health and safety, and control over one's body as falling within the scope of security of the person. Detention and potential incarceration can easily fit within this rubric, but it is generally considered a deprivation of liberty rather than security of the person, although it can be both. Security of the person was in my view engaged by O'Shea's need for psychiatric attention. I accept her evidence that she was experiencing a panic attack. All of the evidence and the circumstances point to a valid conclusion that she needed medical attention, a conclusion that is reinforced by the fact that she was eventually taken to hospital after becoming unconscious.

[31] Hogg has explained that fundamental justice did not historically have a firmly established meaning in Anglo-Canadian law. With the passage of time it became clear that it did cover both substantive and procedural justice and "the principles of fundamental justice are to be found in the basic tenets of the legal system," or that there should be some basis in legal history or legal doctrine for the principles of fundamental justice. Still, the precise content of the expression "fundamental justice" or "principles of fundamental justice" remains fluid. I am not prepared to go so far as to find that the actions of the police who arrested O'Shea were not in accordance with the principles of fundamental justice.

[32] In reaching my decision I have reviewed the police actions as a whole and not only focused on their inability to see the red flags of a panic attack and mental breakdown. They did have a reason to stop O'Shea. She was driving in a slow and awkward manner. At the outset, they did see an open bottle of wine in the car with some of it poured into a cup in a cup holder. They smelled alcohol. They were under an obligation to protect the public and investigate. I accept their evidence that they read her rights to counsel, cautioned her, and read the breath demand at the earliest opportunity. It was very difficult to explain anything to her about her rights, because she was upset, incessantly talking, uncooperative, and worried about her therapy dog, whose support she appeared to need. Not all of their conduct was ideal. They did not act in bad faith. Most basic tenets of the legal system and correct investigation procedure were followed. I see some lacunae in their training about therapy and support dogs and how to handle mentally ill defendants. I also found their treatment of O'Shea to be insensitive and to lack insight. But her life was not in danger, and I do not believe that her demise was imminent. She appeared to be energetically advocating for herself and breathing well. She did need medical care and she ultimately received it, because colleagues of Fraracci and Sutton later realized it. As for O'Shea's pants, she was eventually assisted with them by a female officer, and there was some privacy afforded in the back of the police vehicle. It would have been ideal if the officers called for a female police officer to come to the roadside, and I have taken this into account. Some effort was made to locate counsel of choice. It is not clear whether she was offered the option of speaking to another lawyer other than duty counsel, when Mr Laplante did not return the calls quickly. I do not have direct evidence as to when he called back, but it does not seem to be contested that he called back the following morning at 11:38. This was in the disclosure.

[33] I do not find the manner in which the officers carried out their duties and handled this investigation to be so offensive that I would characterise it as not in accordance with the principles of fundamental justice or falling outside the parameters of the basic tenets of our legal system, and I find no breach of section 7. The section 7 application is dismissed.

Was the Approved Instrument Demand unlawful because it was not made as soon as practicable, thereby violating section 8 of the Charter?

[34] The arresting officer, Fraracci, did not make the breath demand as soon as he formed the grounds to arrest her. He formed these grounds very quickly at the outset based upon criteria that I will assess later in this decision. It is my view that he could not make the breath demand immediately, because O'Shea did not comply with what she was told to do. She resisted their attempts to move her to the police cruiser. I could not reasonably expect them to know what she would do next, and she was clearly not yet fully under their control. She did not cooperate with their attempts to get her into the police vehicle. Once in the police cruiser, she tried to get out. O'Shea's car door was open and the dog got out of her car. By all accounts, the dog was running around. The dog was O'Shea's property and the officers were responsible for securing it. There was pandemonium. She was talking and complaining a lot. She would not stop talking long enough for them to get a word in edgewise. She would not identify herself. Her identity had to be investigated. For understandable reasons, she was preoccupied over the welfare of her support dog, and urgently wished to speak to her lawyer of choice, whom she thought could explain her medical condition better than she could. I appreciate that some of the things that were done before the breath demand was read could have been done afterwards, such as arranging the tow and placing the alcohol and cup in a better recording position for the camera, but it was also reasonable for them not to read the breath demand until she was securely in the vehicle and not trying to leave.

[35] I do not agree that the breath demand could have been read even though O'Shea was talking a lot, and that the police officers could have just talked over her. O'Shea was so distraught that she did not even remember in her evidence that the breath demand was made at the roadside, and I can clearly see on the police car video that it was read to her loudly and clearly. Whether or not the breath demand should be read over an arrested person's talking and unresponsiveness is a fact-specific determination that should be decided on a case by case basis depending upon the unique facts and circumstances of the case. The facts and circumstances of the matter before me are unusually distinctive.

[36] In reaching my decision, I have taken into account that O'Shea was arrested at 11:34. Her Rights to Counsel were given at 11:44, and the breath demand was given at 11:58, and this is 23 minutes after her arrest and 14 minutes after receiving her rights to counsel. I am also mindful of the prevalent view that "if the officer has reasonable and probable grounds the breathalyser demand should also take priority over other matters such as checking the vehicle, looking for identification and documentation and seizing …alcohol" and seizing other evidence. But this is sometimes qualified by a legitimate concern about potential escape, similar to other concerns about safety and exigent circumstances. This is a case like R v Wadden, where there was difficulty controlling the accused. Furthermore, in this case, arranging the tow and securing evidence was done by one officer simultaneously, while the other was dealing with O'Shea.

[37] The test that I must apply is a fact-specific test. From the perspective of the officers in this case, she resisted being moved from her vehicle to the police cruiser, she did not cooperate by following instruction on how to get into the cruiser, and she tried to get out of the cruiser. From their perspective, it would be reasonable for them to be concerned that she was unpredictable. They did not understand that it was traumatic for O'Shea to be separated from her support dog. They missed the red flags that illustrated that she may be mentally ill, and if they had realized this, delays may have arisen due to efforts to be humane by securing medical treatment or letting her have her dog and giving her time to feel comforted by the dog. Delays arising from efforts to be humane are sometimes appropriate. The officers only knew that she was not cooperating or complying with their instructions. Based upon all the evidence that I have heard, some of which the officers did not know at the time, I do not believe that she was trying to escape or be disruptive. She only wanted to be reunited with her dog. But based upon what the officers understood (or failed to understand due to their limited insight) at the time, I do find that the breath demand was made at the first realistic opportunity.

[38] It is my view that I should look at the amount of time that elapsed between arrest and the breath demand within the context of everything else that was happening, and the behaviour of an arrested party. It is not a mathematical exercise. Everything that transpired between arrest and breath demand has been recorded on videotape, which I have described in detail above. Having viewed the video more than once with the assistance of counsel and witnesses, I accept the police evidence that the breath demand was made as soon as practicable. I do not agree that the breath demand could have been read at the same time as rights to counsel were given. In her state of mind I would not expect her to absorb all that technical vocabulary at once. I believe that she understood rights to counsel, because she had a lawyer that she had used before. So the matter of rights to counsel would be familiar. A break of 14 minutes between rights to counsel and the breath demand was reasonable in these very unique circumstances in order to ensure that she could understand and respond in a meaningful way.

[39] For all of these reasons the section 8 application is dismissed.

Did Fraracci fail to have reasonable and probable grounds to arrest O'Shea and thereby breach section 9 of the Charter?

[40] Very briefly, Fraracci's grounds for arresting O'Shea were the unusually slow and hesitant driving, lack of response to his car horn and emergency cruiser equipment, an open bottle of wine in the car, a cup with wine in it in the cup holder, and strong smell of alcohol from the car which had only one occupant, the driver O'Shea, who had a blank stare on her face and glassy eyes. The officer observed an open bottle in the car, a cup with wine in it, and one occupant, the driver. All of these factors taken together are enough in my view for the arresting officer to have reasonable and probable grounds to make an arrest for impaired driving. I appreciate that the reason why O'Shea was driving slowly and hesitantly is that she was looking for a place to park for the night, and I accept her evidence on this point. The arresting officer also agreed that this was possible in his evidence. But he did not know before he arrested her that she was living in her car, and it was reasonable for him to take this factor into account as part of his grounds for arrest. If it is subsequently discovered that information taken into account is not correct or there is a reasonable explanation for a factor taken into account, it does not invalidate the arrest. "What must be assessed are the facts as understood by the peace officer when the belief was formed."

[41] This is not a case in which the arresting officer took "an impermissible shortcut." Nor is it a case where there are "weak indicators of impairment," where there was nothing unusual about the driving other than a squeal of tires that originally caught the arresting officer's attention, the smell of alcohol from the car, glassy eyes, and slurred speech. Where the smell of alcohol is from the car and not the breath of a driver, in most circumstances this would not be sufficient for reasonable and probable grounds. But when the smell from the car is coupled with an open bottle of wine found in the car, wine in a cup and only one occupant-driver of the vehicle, coupled with unusual driving, these are not "weak indicators of impairment." I am satisfied that there were reasonable and probable grounds for the arrest, and the section 9 application is dismissed.

Have section 10(b) rights to counsel been breached?

[42] Section 10(b) of the Charter protects the right to counsel. It declares that, "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." As summarized by Sopinka J in R v Evans:

The jurisprudence establishes that the duty on the police to inform a detained person of his or her right to counsel encompasses three subsidiary duties: (1) the duty to inform the detainee of his right to counsel; (2) the duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay; and (3) the duty to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel…the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so, otherwise the correlative duty on the police to refrain from questioning him is suspended.

[43] Later on in the judgment, Sopinka J clarifies that:

I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that…the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.

[44] In the vast majority of cases the opportunity to speak to counsel without delay does not need to be provided at the roadside. It is sufficient that it be provided at the police station. The Ontario Court of Appeal drew a distinction in R v Torsney between a detainee having "a chance to call counsel" and a detainee being able to "consult with" counsel. The question that the judge of original instance should have asked in that case was whether "there was a realistic opportunity for the appellant…to contact, seek and receive advised from counsel." (emphasis mine) The right to call a lawyer "now" does not mean the right to call one instantly: It is a fact driven inquiry.

[45] R v Willier dealt with the situation where detainees opt to exercise the right to counsel by speaking with a specific lawyer:

If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation…If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended…

[46] An issue has arisen in both the Toronto and Peel Region as to whether it is appropriate for police officers to channel detainees to duty counsel, when their chosen lawyer is not immediately available. Ideally, detainees should be permitted to make phone calls to counsel themselves, and be provided with the resources to do so – phone books containing white and yellow pages, lawyers' and paralegal directories and law lists, on-line directories, and access for detainees to their own cell phones and electronic directories. In Toronto and Peel, this ideal system is not used. As Horkins J has explained, "the obligation to facilitate access to counsel of choice" is placed "on the shoulders of the front-line officer":

In Toronto, the system appears to dictate that the accused is never allowed to actually dial a phone, let alone search the Internet, or be given a directory to look up contact information on their own. The approach of the Toronto police is that they control the process of gaining access to counsel and will seek to fulfill their duty of facilitating access to counsel, by making a call for the accused. They will make a call to private counsel and will "page" the on call duty counselor.

[47] As Horkins J has observed, there are problems with the approach used in Toronto:

The police will not usually have the contact information for private counsel, are not equipped with the means of obtaining that contact information, and may not be particularly motivated to extend themselves in search for it when the handy "1-800" duty counsel service option is so easily available.

[48] In R v Maciel Stribopoulos J has remarked:

For reasons that went unexplained before me, the evidence at trial made clear that the Peel Regional Police have assumed the responsibility of contacting counsel on behalf of those who are in police custody. This is in contrast to the practice elsewhere in the country, where the police discharge their duty to provide persons in custody with a reasonable opportunity to contact counsel by providing them with the means to do so. For example, it would appear that in Alberta, those who assert their right to counsel are given access to a telephone, a lawyer's directory, phone books and are even provided with access to the Internet. In contrast, the Peel Regional Police have assumed the responsibility of consulting such resources on behalf of persons in their custody who assert their right to consult a lawyer of their choosing.

Quite obviously it is not my role to second-guess police operational procedures. And, to be clear, I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.

If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult of lawyer of their choosing.

[49] Horkins J, cited with approval by Stribopoulos J, applied the same standard:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

[50] I have found the judgments of my colleagues above to be instructive and persuasive, and I shall be applying the same standard.

[51] The main section 10(b) Charter breach alleged in this case is that the police took inadequate steps to contact O'Shea's counsel of choice. It is also submitted that she was not offered the choice of speaking to a lawyer other than duty counsel, if her initial counsel of choice was not available. It is also argued that the police failed to re-caution the accused after she was charged with refusing to provide a sample. The latter is the simplest of the three right to counsel submissions, and I shall address it first.

[52] As I have noted in paragraphs 42 and 43 above, the law does not require police to re-caution detainees at every twist and turn of an investigation. It is only required for a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time she was first cautioned. I accept the police evidence that she was warned that if she did not blow, she would be charged. I accept O'Shea's evidence that this was not her understanding, and I attribute that to the degree to which she was mentally distressed by that time. I do not find that it was not said. But I also find as a fact based upon all the evidence that she was not re-read her right to counsel and she had not spoken to counsel. But the new charge of refusal was not a fundamental and discrete change in the drinking and driving investigation that was occurring. Refusal is not an unrelated or significantly more serious offence than that contemplated at the original time of cautioning, so I do not find that re-cautioning was necessary on these facts.

[53] O'Shea made it abundantly clear right from the outset that she wanted to speak to her lawyer Geoff Laplante. It can never be said that she was not diligent in pursuing this option. As I have summarized from the video evidence above in paragraph 11, she provided the name of her lawyer, Geoff Laplante, many times and clearly. This was unmistakable on the video. She expressed the wish to call her lawyer herself, to speak to him "directly." She was told very pointedly, and I can hear this very clearly on the video, "No, we will call her." This, as I have discussed above, is the protocol in the Toronto Region. It can be seen on the video that Fraracci tried to find the phone number of Laplante and then, exasperated, says that the phone was dead. She had a charger, but she could not remember on the witness stand if they asked her whether she had a charger. Efforts to contact her lawyer continued at the police station. Fraracci found an office and a cell number and placed four calls, to which they did not receive a response. Fraracci made honest attempts to reach O'Shea's counsel of choice, but they were not as diligent as the efforts that the accused would have made. She wanted to make the calls from the car. She wanted to charge her phone. She had a charger. According to the police evidence, chargers were available at the police station, but there is no evidence they were used. Fraracci spent time at the police station searching for the phone number. As such he made the calls much later than they could have been made, later into the night when it was less likely that counsel could be reached. They arrived at the police station at 12:30. The first call to Mr Laplante was not made until 12:50. All that time was wasted. If O'Shea's phone were charged in the car, Mr Laplante's contact information could have been retrieved much sooner. Even if they started charging her phone as soon as she arrived at the station, the contact information could have been retrieved more quickly. If O'Shea were allowed to retrieve the contact information and make the call herself, she would have exercised the effort and diligence necessary to find the information and make the call much sooner. O'Shea was very motivated to speak to Laplante. She did not only want legal advice. She wanted help from him with other problems. She wanted him to explain her mental health issues and the role of her therapy dog to the police. Her reasons for wishing to speak to her counsel of choice are an ideal illustration of why the right to speak to counsel to choice is so very significant. She did not trust nor did she have confidence in duty counsel. They had not been able to help her before. She would only have some degree of trust and confidence in a lawyer other than Mr Laplante. Only her first lawyer of choice could give her the legal advice and related assistance that she felt that she needed, and in which she would have confidence.

[54] Both officers who testified remember telling O'Shea that her lawyer had not responded and offered her the option of speaking to duty counsel, an option that she did not wish to exercise for the very clear and understandable reasons elaborated on in my summary of the evidence. Sutton at one point testified that he offered her the option of speaking to another lawyer and her reply was unresponsive to the question. She wanted to know where her dog was. It should have been obvious to him that she either did not hear or did not understand what he said. O'Shea testified that if she couldn't speak to Mr Laplante, she would have liked to have spoken to a lawyer other than duty counsel. So if she were given this option, she would have accepted it. But I do not believe that she was given the option of speaking to a second lawyer of her choice other than duty counsel. Fraracci does not remember it that way, and Sutton's evidence is internally inconsistent on the point. This case is illustrative of precisely the kind of situation where it is very tempting for police to use to use the "handy" 1-800 duty counsel option, and speed up completion of the investigation, where time was of the essence, and they were very frustrated, "at their wit's end," as they described in testimony. This is precisely the kind of case, where it is easy to see that police succumbed to the temptation of piloting the accused towards duty counsel, and while making honest efforts, certainly did not exercise the same diligence that O'Shea would have, and this is the standard I am applying – the diligence I would have expected of an accused, which is the diligence that I am confident O'Shea would have exercised, had she been permitted the means to do so.

[55] The police efforts to contact counsel of choice were inadequate. I find a section 10(b) breach. Having concluded that the evidence of impairment including video evidence, the approved instrument demand, and evidence of the applicant's refusal to accompany a peace officer for a breath sample was obtained in a manner that infringed O'Shea's right to counsel, I must now decide whether the evidence should be excluded having regard to whether in all the circumstances, the admission of it in these proceedings would bring the administration of justice into disrepute. In considering the foregoing, I must apply the well-known framework for analysis, which was enunciated by the Supreme Court of Canada in R v Grant: the seriousness of the Charter infringing state conduct, the impact of the breach on O'Shea's Charter protected interests, and society's interest in the adjudication of the case on its merits.

[56] The Charter infringing conduct in this case was serious. I do not find that the officers acted in bad faith. They simply carried out their duties in the manner in which they were trained. Lack of training is a systemic problem. As in R v Maciel, they were simply unaware of the extent of their duty to facilitate contact between those in their custody and counsel of choice. As in R v Panigas, O'Shea was channelled to duty counsel, and not advised that she had the option of speaking to another lawyer other than duty counsel, when Mr Laplante did not return the calls. The police went into the automatic pilot bred by a systemic approach of steering suspects in a direction that is easy for them.

[57] The Charter infringing conduct was aggravated in this case by the devastating impact that separating O'Shea from her therapy dog had on her mental distress and emotional state. Once again, the officers did not act in bad faith. They simply do not have the training to deal with mentally ill detainees effectively and the use of therapy support dogs. Again, this is a systemic problem, and "evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion."

[58] The impact of the violation of O'Shea's Charter protected interests was high. Had efforts to reach her counsel of choice begun sooner, he may have been reached. Had he been able not only to provide legal advice, but assist with O'Shea's other problems that evening, her emotional state may very well have ameliorated, and she may very well have complied with the breath demand. He would have been able to explain her mental health problems and provide some insight to the police, which she felt far too spent to do herself. The relevant Charter protected interest here was her security of the person, which as I indicated earlier, has been found by the courts to include medical and psychiatric health. The impact on her liberty interests was also high. She was arrested and handcuffed, taken to Traffic Services, then taken to 42 division to "sober up." It was a huge infringement of her constitutionally protected right to liberty. She attested to "waking up" in the hospital after officers at 42 division sent her there, once it was finally understood that she needed medical attention. Being handcuffed impeded her access to her lifelines, including use of her cell phone, access to her charger, access to a therapy dog so essential to her well-being, and as she put it, her car, her home, her means of employment, and her support dog, her whole life was being towed away, all essential to support her ability to live freely in a democratic society. She was mentally ill, experiencing a panic attack and mental breakdown, therefore very vulnerable, a thin skull with an eggshell personality. The impact of this infringement of her rights was disproportionately high given her vulnerability. All of these factors weigh heavily in favour of exclusion.

[59] The strong societal interest in truth seeking and the adjudication of criminal prosecutions on their merits generally favours inclusion. But as in Maciel, the evidence of the refusal might not have come into existence had O'Shea's right to her counsel of choice been respected. The failure of one very unusual prosecution in the case of a homeless woman living in her car for whom anyone with a social conscience would feel nothing but compassion, who was in practically no danger of causing a traffic fatality or adding to the tragic highway statistics, as she drove very slowly and hesitantly at a time when there was almost no traffic, will not affect the long-term reputation of the administration of justice, and will not bring the administration of justice into disrepute.

[60] The evidence will be excluded.

Released: July 1, 2018

Signed: Justice Sheila Ray