Ontario Court of Justice
Between:
HER MAJESTY THE QUEEN
— AND —
BENJAMIN McEWAN
Before: Justice Trevor A. Brown
Reasons for Decision
Decision released on May 1, 2018
Counsel:
- Mr. Brian Redmond, Counsel for the Crown
- Mr. Bruce Engel, for the Defendant, Benjamin McEwan
BROWN, J.:
1Benjamin McEwan faces charges of impaired driving and operating a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 milliliters of blood, arising out of an incident alleged to have occurred on October 29, 2016. The trial and Charter issues proceeded together as part of a blended voir dire. Mr. McEwan seeks the exclusion of evidence to remedy what he alleges are violations of his right to be informed promptly of the reasons for his detention (section 10(a) of the Charter), his right to counsel (section 10(b) of the Charter) and his right to be free from arbitrary detention (section 9 of the Charter). The latter breach alleged is said to be an "over-holding" in custody following the provision of breath samples that resulted in charges being laid.
1. EVIDENCE ON THE BLENDED VOIR DIRE
a) Crown Evidence
Constable Christopher Morris
2The first Crown witness called was Constable Christopher Morris. Prior to his retirement in October 2017, Constable Morris was a police officer for fourteen years. He testified that he was on duty on 29 October 2016, on general patrol in the Kanata area of Ottawa. At 12:01 AM, he was parked in the parking lot of a grocery store at the intersection of Hazeldean Road and Carp Road when he received a radio call for service for an intoxicated driver at the Barley Mow, a pub that was located elsewhere in that same lot. The information from the call indicated that the customer had just left the pub and may have intended to drive his white Hyundai. The license plate for the vehicle was given along with further information that the customer had just gotten into the car and drove around the parking lot, with a friend trying to stop him.
3Constable Morris drove through the parking lot to the Barley Mow location, arriving in seconds. He was approached by the doorman at the Barley Mow who advised him that a male had driven his vehicle in the parking lot, entered the Tim Hortons situated beside the Barley Mow, and then re-entered the bar two minutes earlier and was now in the bathroom. Constable Morris entered the pub with the doorman who pointed out the male he said had been driving. Constable Morris testified in-chief that he approached this man, who turned out to be the accused, Benjamin McEwan, and asked to speak to him outside. Mr. McEwan agreed, and they went outside. Constable Morris was unsure whether Mr. McEwan asked him why he was to accompany the officer outside, as there was a band playing music in the pub and it was quite loud. Within a minute of Constable Morris entering the pub, he and Mr. McEwan exited together.
4Constable Morris located the white Hyundai and asked Mr. McEwan if it was his vehicle. Mr. McEwan acknowledged that it was. Constable Morris then asked Mr. McEwan if he had been driving, which Mr. McEwan denied, saying he had just walked over to the Tim Hortons. Constable Morris advised the male that he had witness information which contradicted Mr. McEwan's denial of driving, and asked him how much he had to drink, to which Mr. McEwan replied: "a couple". Constable Morris asked Mr. McEwan what a "couple" was, to which Mr. McEwan replied "three or four". Mr. McEwan requested to be allowed to simply walk home. During this encounter Constable Morris made a number of observations including detecting an order of alcohol on Mr. McEwan's breath"body tremors", glassy eyes, slurred speech, unsteadiness on his feet, and shuffling of his feet. Based on the symptoms of impairment he observed, in conjunction with the information he received from the bar staff that Mr. McEwan had driven a motor vehicle, Constable Morris formed reasonable and probable grounds to arrest him for impaired driving. He did so at 12:05 AM.
5At this time there were several officers on scene. Between 12:05 and 12:15, Constable Morris tended to a number of administrative tasks related to the investigation, including delegating to other officers the tasks of obtaining statements, arranging for a breath technician, and other duties. He walked Mr. McEwan to his police vehicle, searched him incident to arrest, located his identification and confirmed his identity. He then placed Mr. McEwan in the backseat of the cruiser, and proceeded to make his preliminary notes in his duty book. After doing so he then read the rights to counsel, cautions, and breathalyzer demand to Mr. McEwan. This commenced at 12:15 AM. Mr. McEwan appeared to understand the rights cautions and demand made of him. Constable Morris at 12:24 AM departed with Mr. McEwan for central cells for the breathalyzer process to be undertaken. They arrived at central cells at 12:50 AM.
6After processing Mr. McEwan and giving him the opportunity to speak with his counsel of choice, custody of Mr. McEwan was turned over to the breath technician at 1:13 AM. Custody of Mr. McEwan was returned to Constable Morris from the breath technician at 1:47 AM. The breath technician advised Constable Morris that Mr. McEwan had provided readings over 80 milligrams of alcohol per hundred milliliters of blood and as such Constable Morris charged Mr. McEwan with impaired operation of a motor vehicle and driving while his blood alcohol concentration exceeded the legal limit of 80 milligrams of alcohol per 100 milliliters of blood. Mr. McEwan was served by Constable Morris with various documents at 1:52 AM, which ended Constable Morris' dealings with Mr. McEwan. Constable Morris filled out in the booking sheet the charges he wanted to be laid, and left Mr. McEwan in the custody of the cell block sergeant. By 2:00 AM Constable Morris was on his way back to Kanata.
7In cross-examination, Constable Morris was asked a number of questions about his initial dealings with Mr. McEwan. He agreed with counsel for Mr. Morris that after receiving the information that he did from the doorman, he went inside to confront Mr. McEwan. He agreed that he instructed the accused to go outside and stay outside. He further agreed that Mr. McEwan was detained by him for investigative purposes, but he did not advise Mr. McEwan that he was in fact detained. When asked why he did not advise Mr. McEwan that he was under detention, Constable Morris' response was "I'm not sure. I don't have the answer to that question". He agreed that he did not offer Mr. McEwan an opportunity to call a lawyer at the point that he was detained for investigative purposes. He further agreed that Mr. McEwan was cooperative in answering all of his questions.
8Constable Morris was then asked about what happened immediately following his arrest of Constable McEwan. He agreed that a number of things occurred prior to him advising Mr. McEwan of his rights to counsel and various cautions. He handcuffed Mr. McEwan, delegated tasks to other officers, searched Mr. McEwan, placed him in the back of the cruiser, and then commenced making preliminary notes. When asked why he did not read the right to counsel at 12:06 AM, immediately following the arrest of Mr. McEwan, instead of waiting until 12:15 AM, Constable Morris indicated that his notes were not complete up to that point and that it would have been difficult to have an up-to-date chronology in his notes if he proceeded immediately to the rights to counsel.
9When asked whether it was more important for him to organize his notes than provide an arrested person with his rights to counsel, Constable Morris indicated he did not think the ten minutes would make any difference if the accused person was not making any statements and was being quiet. In the officer's opinion, given that Mr. McEwan was not saying anything, he was not in any jeopardy, and so getting thorough notes was his priority. Constable Morris indicated that had Mr. McEwan started making any utterances or incriminating himself, then out of fairness to him, Constable Morris would have given his rights to counsel at that time. Constable Morris readily agreed that in the circumstances of this case, there was nothing preventing him from giving the rights to counsel sooner.
10Constable Morris was also asked a number of questions in cross-examination about what happened when he received custody of Mr. McEwan back from the breath technician at central cells. Constable Morris testified that whether or not the accused should be released was not his decision to make; rather, that was the decision of the cell block sergeant. It was the mandate of the cell block sergeant to determine if and when to release the accused person. He was aware that cell block sergeants had a habit of asking for breathalyzer readings of the accused persons once they were done the breathalyzer procedure, and that he would have provided Mr. McEwan's readings to the cell block staff that night when he filled out the booking sheet. Constable Morris did not follow up with the cell block about Mr. McEwan's release when he left to go back on patrol. He indicated that it was possible that Mr. McEwan had a cell phone on his person, though he had made no notation of it.
11With respect to his observations of alleged impairment on the part of Mr. McEwan, Constable Morris' evidence in cross-examination was that throughout his dealings with Mr. McEwan, Mr. McEwan appeared to respond to questions in a prompt fashion with answers that seemed reasonable. He maintained that Mr. McEwan was having difficulty walking, as he was shuffling, unbalanced, and swaying from side to side. He further maintained that Mr. McEwan was having difficulty talking, as he was slurring his speech, especially at the ends of his words. With respect to Mr. McEwan's manner of speech, Constable Morris agreed that he could not give any examples of any words which were slurred by Mr. McEwan, and further that he had not met Mr. McEwan either before or after the night of his arrest.
William McKinnon
12William McKinnon testified in-chief on behalf of the Crown that on October 29, 2016, he was working door security at the Barley Mow located at 1160 Carp Road. One of his chief duties involved standing at the front door the establishment and monitoring people for their level of intoxication, which he testified in-chief was difficult, as determining impairment was always "subjective".
13Mr. McKinnon recalled interacting with Mr. McEwan in the front entryway to the Barley Mow, and inquiring of him as to how he was getting home. He did not recall what prompted his interaction with Mr. McEwan. Mr. McEwan indicated to him that he was not driving, but Mr. McKinnon could not remember what, if anything, Mr. McEwan said to him about what transportation he had arranged. Mr. McEwan then left the premises. Mr. McKinnon recalled going to speak with a group of people that Mr. McEwan had previously been with, but did not recall the conversation that he had with them.
14At some point thereafter, Mr. McKinnon saw Mr. McEwan pull around the parking lot in a car towards the entrance of the Barley Mow, and he called the police. Mr. McEwan's friends left the Barley Mow to go speak with Mr. McEwan. He watched Mr. McEwan then go and park the car. At this point Mr. McKinnon was already on the phone with the Ottawa Police Service. He watched Mr. McEwan get out of the car, walk across the parking lot to the Tim Hortons beside the Barley Mow, and then walk from the Tim Hortons back into the Barley Mow. He did not prevent Mr. McEwan from re-entering the pub. When the police officer arrived at the pub, he asked Mr. McKinnon to point out the driver, and Mr. McKinnon did so.
15Mr. McKinnon testified that he chose to call the police that night because it was his habit to do so whenever he determined that someone was too intoxicated to drive. He maintained that Mr. McEwan definitely would have shown signs of intoxication that night, but was unable to recall any of the signs of intoxication that he observed. All of Mr. McKinnon's observations of Mr. McEwan took place between 11:55 PM and 12:10 AM.
16In cross-examination, Mr. McKinnon confirmed that he could not provide any details of any signs of intoxication that Mr. McEwan was displaying on October 29, 2016. He could recall nothing about Mr. McEwan's manner of speech, balance, gait, or manner of driving that would provide a foundation for his belief that Mr. McEwan was impaired. Neither could he recall whether there was an odour of alcohol on Mr. McEwan's breath.
Constable Shawn Adams
17Constable Shawn Adams of the Ottawa Police Service was the next Crown witness. Constable Adams was the breathalyzer technician on duty on October 29, 2016. He testified that when he received Mr. McEwan from Constable Morris, he could smell a strong odour of alcohol in the vicinity of Mr. McEwan and observed him to have glassy, reddish, bloodshot eyes. He testified that Mr. McEwan was very polite and cooperative, very talkative, slurred his words, and would sometimes have difficulty focusing and would fidget. Mr. McEwan provided the samples of breath demanded of him, with his first reading at 1:23 AM being 140 milligrams of alcohol per hundred milliliters of blood, and his second reading at 1:45 AM being 130 milligrams of alcohol per hundred milliliters of blood. He returned custody of Mr. McEwan back to Constable Morris following the second reading, and provided those readings to Constable Morris, along with a copy of the Intoxilyzer test record and the Certificate of Qualified Technician.
18In cross-examination, Constable Adams agreed that Mr. McEwan had no difficulty walking to or from the room where the breath samples were taken, that Mr. McEwan had no difficulty manipulating the mouthpiece that he provided samples into, and that he made no note of any of the particular words Mr. McEwan was slurring. He acknowledged that Mr. McEwan was not slurring all of his words, and in terms of the difficulties focusing, explained that he arrived at this conclusion because Mr. McEwan needed the sample instructions repeated to him two or three or four times. Mr. McEwan had no difficulty getting on or off the weigh scales.
19Constable Adams testified that it is the arresting officer who takes care of the release of the accused person, and that as the breath technician, he provides the breath sample readings to the cell block officer. He acknowledged that although he had no note of it, it was possible that Mr. McEwan asked if he could get in touch with his father to get a ride home. He noted that the breath testing procedure performed in respect of Mr. McEwan was videotaped, and would likely confirm whether this conversation took place.
20In re-examination, Constable Adams indicated that as a result of the observations he made during his interactions with Mr. McEwan, he felt at the time that it was very obvious that Mr. McEwan's ability to operate a motor vehicle was impaired by alcohol.
Sergeant Derek Wereley
21Sergeant Derek Wereley was the officer in charge of the cell block on 29 October 2016. He described the scope of his duties as the officer in charge of the cell block to include prisoner care, making sure that people in the cell block where there lawfully, and overseeing the care of those persons throughout their time in the cell block. He and a team of four special constables would be working in the cell block. All shifts ended at 5:30 AM, when a new cell block sergeant and team of special constables came on duty. Sergeant Wereley had no notes or investigative action report detailing his activities during his shift, and no specific recollection of Mr. McEwan from that night.
22With respect to how the release of persons charged with impaired driving was typically affected, Sergeant Wereley testified that once the final breath sample was provided he would subtract 10 milligrams from the detainee's breath sample readings for every hour that person was in police custody, until such time as they would be below the legal limit. This number was based on his understanding of people usually eliminating alcohol from the body at an average rate of 10 to 15 milligrams of alcohol per hour. At that point there would be conversations had to see if the person was sober enough to release, and if so, they would be processed by a promise to appear or undertaking to an officer in charge. With impaired drivers, the breathalyzer readings and the time of the readings were typically written on the top of the prisoner's booking sheet in red pen, such that the time of release could be tracked.
23Sergeant Wereley testified in-chief that once the breath technician had completed his or her testing, if the prisoner had someone responsible that they could contact to pick them up from the station, then cell block staff would try to facilitate that phone call. To get this information they would have a conversation with the prisoner to see if there was anyone they could call and whether they had a phone number for that person. Cell block staff did not want detainees there any longer than necessary, and if a responsible person were available to take responsibility for the charged person, then Sergeant Wereley would release the accused to such a person. It was Sergeant Wereley's practice to try to get someone on the phone who could take responsibility for a charged person who was going to be released.
24When asked in-chief whether detainees were ever released prior to coming under the threshold of the legal limit, Sergeant Wereley's response was"not by me". His thought process was that in the worst-case scenario, someone who was over the legal limit and had other stressors in their life could leave the station, walk in front of a car, and the cell block sergeant would ultimately be looked to as liable in the circumstances.
25Sergeant Wereley testified that at shift change, he goes through all of the booking sheets with the staff who are coming on duty. Ultimately it is the officer in charge who has the responsibility to release an accused person in custody. In this case he could not recall what, if any, information about Mr. McEwan he conveyed to the officer who took charge of the cell block at shift change. By looking at Mr. McEwan's release document in court, he was able to ascertain that it was the cell block sergeant who replaced him at shift change that night, who ultimately effected the release of Mr. McEwan.
26In cross-examination, Sergeant Wereley indicated that he followed the 10 to 15 milligrams per hour elimination rate rule for the safety of the accused person and to protect himself. He agreed that he would consider releasing someone who had readings above the legal limit even at 120 or 130 milligrams per 100 milliliters of blood, to a responsible person. He agreed that he would consider releasing a person with readings as high as 138 milligrams of alcohol per 100 milliliters of blood to a responsible person in circumstances where the accused was not showing much in the way of intoxication. An impaired driver who had been described as cooperative throughout his dealings with the police would fall into that category.
27Sergeant Wereley testified in cross-examination that it was his practice to always put his mind to the question of whether an accused person could be released to a responsible person, and to "put it in the arresting officer's head" to see if the accused had a person to come pick them up. When asked if he was surprised that the arresting officer in this case did not even put his mind to the issue of release, Sergeant Wereley replied in the negative, and agreed that ultimately it was his own responsibility to do so. To carry out that responsibility, he would go to the cell block and asked the accused person if there was such a responsible person. He did not know if he did so in the case of Mr. McEwan. He further agreed that it was possible that on October 29, 2016 he was not necessarily attentive to Mr. McEwan's release time.
28In response to a question from the bench Sergeant Wereley indicated that he followed the 10 to 15 milligrams per hour elimination rate rule of thumb as that was what he had learned from the cell block sergeant who had trained him. He was unsure whether there were any Ottawa Police Service policies or directives that address the timing of release for a person charged with an "over 80" or impaired driving related offence.
Cell Block Videos
29Also filed in evidence in this case were videos from the cell block that show Mr. McEwan's interactions with various cell block officers while in custody following his arrest. A clip from the fingerprinting area between 3:22 AM and 3:32 AM shows the conduct of the fingerprinting procedure in respect of Mr. McEwan. During this clip, Mr. McEwan can be seen and heard discussing with the officer the issue of his sobriety. Mr. McEwan tells the officer that he just wants to go home. The clear impression given by the special constable during this interaction is that the timing of Mr. McEwan's release is something that will be addressed by another officer. From the audio and video of this clip, there are no apparent indicia of the impairment described by Constable Morris or Constable Adams. Mr. McEwan can be seen and heard conversing in a clear manner with the officer while in a seated position, getting up at the officer's request and walking to the fingerprint booth, where he complies with the officer's directions. He appears to have no difficulties with balance or coordination while standing there being printed, or on the walk to or from that station.
30At 5:54 AM, Mr. McEwan is taken by another special constable to the same location, again for fingerprinting. Mr. McEwan advises the special constable during this clip that he has already been fingerprinted that morning. When seated at the desk across on the officer, after checking something in front of him, the special constable ascertains that, in fact, Mr. McEwan had been printed earlier. It is clear from this clip that the officer was not aware of this fact at the time he went to retrieve Mr. McEwan from his cell.
b) Defence Evidence
Benjamin McEwan
31Mr. McEwan swore an Affidavit that was filed with the court in support of his Charter application. In that Affidavit he deposed that when Constable Morris first approached him and started asking him questions, he did not believe that he could leave and further believed that he had to answer the officer's questions. At no point prior to Constable Morris asking him those questions was he informed of the reason for his detention, nor was he given his right to counsel at that time.
32Mr. McEwan deposed that in between providing the first and second samples of his breath, he asked Constable Adams if he would get the opportunity to contact his father, Ross McEwan, so that his father could come and get him from the police station. He also informed Constable Adams that he had a cell phone at the station, though it was in police custody at the time. In response to this, Constable Adams stated that if Mr. McEwan needed someone to come and get him, he was sure that Mr. McEwan would be able to use a phone for that purpose.
33Mr. McEwan swore in his Affidavit that he knew both his father's cell phone number and home number off by heart. He believed that had he called his father's cell phone or his home phone number in the early hours of October 29, 2016, either his father or stepmother would have answered the phone and that either or both would have been willing and able to pick him up from the police station. Moreover, his cell phone at the material time contained the numbers of friends who lived in the downtown Ottawa area, and he expected that one of his friends would have been willing and able to pick him up from the police station had he called them in the early hours of the morning. He asked a number of police officers in the cell block area, including the officer who initially took his fingerprints, whether he could be released. He was told that someone would look into it, yet he remained in his cell until 5:56 AM.
34In addition to his sworn Affidavit, Mr. McEwan testified on the blended voir dire. At the time of the incident giving rise to the charges before the court, Mr. McEwan was 30 years old and working as a Bell technician. On October 29, 2016, he was at the Barley Mow pub, and had consumed alcohol that night. He left the pub briefly, but returned when one of his friends told him that people inside the bar were looking for him. His first thought was perhaps that he had not paid his bar tab. When he was first approached by Constable Morris, he was confused as to why the officer was there. He was asked by the officer whether he owned a white Elantra. After confirming that he did, the officer told him to follow him outside right away and so he went with them. He figured he just had to do whatever the officer said and so he went with him. He thought perhaps something it happened to the car, or someone had hit it; he had no idea why the officer had asked him about the car.
35Mr. McEwan recalled being arrested and taken to the police station, where he provided breath samples. He testified that he had asked officers in the cell block if he could call his father, mother, stepsister, or a friend for a ride home. The officers that he spoke with in the cell block said that they would give him that opportunity, but never did. He had a cell phone with him when brought to the station. Although he asked a number of officers who walked by his cell if he could call someone for a ride, no officer gave him the opportunity to do so. Each time he asked an officer to call for a ride, the response would be the same: they would pass the message along to the next officer. Mr. McEwan was ultimately released around 6 o'clock in the morning.
36With respect to the symptoms of impairment observed by Constable Morris, Mr. McEwan testified that it was late at night, he plays a lot of computer games, and his eyes tend to be red late at night and in the early hours of the morning. On the evening in question, he walked in the same manner he has his whole life – shuffling, not picking up his heels. He felt that at the time of his interaction with Constable Morris that he was fine to drive.
37In cross-examination, Mr. McEwan indicated that he had gone to the Tim Hortons to get a sandwich. A friend came outside and wanted to get something from the car and so he unlocked it from a distance. The friend told him that someone inside was looking for him. When he went back in, the police officer was already in the pub. Mr. McEwan wondered if his debit had not gone through when he paid his bill, and that is perhaps why the officer wished to speak with him. He testified in cross-examination that the officer asked him right away whether he drove a white Elantra, and told him to come with him. In spite of not thinking he was in trouble, his experience was that you follow a police officer when the officer tells you to, and he felt he had no choice but to go with Constable Morris. He confirmed in cross-examination that Constable Morris advised him he was under arrest for drinking and driving once outside the bar, just before he was handcuffed. After being searched he was placed in the back of the police car, and waited for the officer to return to tell him what was going on. Eventually the officer read him his rights, shortly before he was brought to the station downtown.
38Mr. McEwan denied that one of the reasons he had red, glassy eyes was due to his consumption of alcohol. He agreed that he had consumed alcohol, two pints of beer and probably a "Jaeger bomb" later on in the evening. He had been at the bar since about 10:00 or 10:30 PM. He testified that he shakes when he is nervous, just as he was shaking in the witness stand due to his nervousness. He did not think he had any issues at the time with his balance. He was cross-examined on his conversations with the officers at the cell block, and maintained his assertions from his Affidavit and examination-in-chief about the requests made and the responses he received. He also agreed with Crown counsel that despite his evidence that there were a number of people who could have picked him up at 3:00 AM had he called them, he did not call any of them at 6:00 AM when released. His reason for this was that by 6:00 AM, he was being released anyways, and did not want to embarrass himself by disclosing the fact of his arrest. There was no longer any point in involving others.
2. ISSUES AND ANALYSIS
Counsel for Mr. McEwan argues the following issues:
Mr. McEwan was detained by Constable Morris and not promptly informed of the reason for his detention, contrary to sections 9 and 10(a) of the Charter, nor was he informed of his right to counsel upon detention, contrary to section 10(b) of the Charter;
Mr. McEwan was not informed of his right to counsel immediately upon arrest, contrary to section 10(b) of the Charter;
Mr. McEwan was not released from the police station as soon as practicable, contrary to sections 497 and 498 of the Criminal Code, and in violation to his right to be free from arbitrary detention and imprisonment, contrary to sections 7 and 9 of the Charter;
The cumulative effect of the breaches of Mr. McEwan's rights in this case require the exclusion of evidence under section 24(2) of the Charter, including the evidence of the readings obtained from the breath samples taken and the observations made of Mr. McEwan while at the police station;
The evidence of impairment of Mr. McEwan's ability to drive a motor vehicle does not in the circumstances meet the standard of proof beyond a reasonable doubt.
Issue #1 – Sections 9, 10(a) and 10(b) Charter rights upon detention
39I conclude on the evidence before me that Mr. McEwan was detained for investigative purposes by Constable Morris very shortly after he approached Mr. McEwan inside the Barley Mow. Constable Morris was clearly investigating a Criminal Code impaired driving related offence at the time he entered the pub. He went inside that pub to locate the person alleged to have been driving the white Hyundai. He asked Mr. McEwan to accompany him outside the bar and directed him to stay outside. This is on Constable Morris's own evidence. Constable Morris agreed in cross-examination that by the time Mr. McEwan was outside the pub, he was detained for investigative purposes.
40I conclude, given the information that Constable Morris had when he entered the pub – both from dispatch and from the bar staff he conversed with prior to entering the pub – that the detention of Mr. McEwan outside the pub was lawful under the general authority of police to detain persons for the purpose of investigation where the police have reasonable suspicion to believe that the person has committed a criminal offence. The detention itself was not arbitrary and did not breach section 9 of the Charter. Constable Morris had received information from dispatch about a male who was operating his motor vehicle while impaired at the Barley Mow, and attended there immediately. He learned from his conversation with Mr. McKinnon that Mr. McEwan was the driver in question, and that he had returned inside the Barley Mow. Constable Morris had ample grounds for his suspicion that Mr. McEwan was the driver in question and that his ability to operate a motor vehicle was impaired by alcohol.
41The authority to detain a person for investigative detention does not however compel the detainee to answer questions posed by the police. Section 9 of the Charter requires that a person detained for investigative purposes be advised in clear and simple terms of the reason for his detention: R v. Mann, 2004 SCC 52 at para. 21. On both the evidence of Constable Morris and Mr. McEwan, it is readily apparent that Constable Morris did not advise Mr. McEwan of the reason for his detention. This represents a breach of section 9 and 10(a) of the Charter.
42Once an individual is detained for investigative purposes, section 10(b) of the Charter is engaged, and guarantees the right to retain and instruct counsel without delay and to be informed of that right. The police must execute those duties immediately upon detention, rather than wait to fulfill them at a later time: R. v. Suberu, 2009 SCC 33 at paras. 37-42. Constable Morris failed to comply with this requirement of the Charter. Instead, he proceeded to question Mr. McEwan and obtain answers to a number of his questions before providing him with a right to counsel. He asked Mr. McEwan whether he owned a white Hyundai; if he had been driving; how much he had to drink; and what he meant by "a couple" of drinks. All of these questions and answers took place at the front entrance of the Barley Mow, after Mr. McEwan was detained and without Mr. McEwan having been advised of the reason for his detention or of his right to retain and instruct counsel. This represents a breach of section 10(b) of the Charter.
Issue #2 – Section 10(b) Charter rights upon arrest
43It is also clear on the evidence before me – and it is conceded by the Crown in this case – that Constable Morris failed to advise Mr. McEwan of his right to retain and instruct counsel immediately upon his arrest. Indeed, over the course of ten minutes, Constable Morris attended to a number of other duties, including writing up the chronology of events in his duty book, before finally turning his attention to the right of Mr. McEwan to be apprised of his right to counsel. There was no good reason given by Constable Morris for his failure to advise Mr. McEwan of his right to counsel immediately following his arrest.
44It was obvious from the officer's evidence that he had no appreciation of the immediacy component of this important Charter right. Constable Morris understood, incorrectly, that he could provide the rights to counsel when it was convenient for him to do so. Again, section 10(b) of the Charter requires that a person who has been arrested be informed of their right to retain and instruct counsel without delay. The words "without delay" mean "immediately". The immediacy of this obligation is subject only to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under section 1 of the Charter: Suberu, supra.
45No such concerns or limitations arise in the circumstances of this case. There were other officers on scene at the time, Mr. McEwan accompanied the officer out of the bar with no issue, and Mr. McEwan presented no safety or flight concern. Mr. McEwan ought to have been provided his rights to counsel immediately following his arrest. Constable Morris' failure to provide the rights to counsel immediately upon arrest arose simply from his own ignorance of his duties. He breached Mr. McEwan's right to be informed without delay of his right to retain and instruct counsel, violating section 10(b) of the Charter.
Issue #3 – Arbitrary detention due to "over holding"
46I find on the evidence before me that Mr. McEwan has met his burden in establishing a breach of his section 9 rights under the Charter. This was indeed a case of "over holding". The Ottawa Police Service did not release Mr. McEwan after the investigation was completed, and kept him detained in the police cell block for four hours longer than was necessary in the circumstances.
47I accept Mr. McEwan's evidence in this case that between providing his first and second samples, he asked Constable Adams if he would be able to contact his father so that his father could come and get him from the police station. I also accept his evidence that he advised Constable Adams that he had a cell phone at the station, and that Constable Adams assured Mr. McEwan that he would be able to use his phone for that purpose. Constable Adams agreed in cross-examination that this may well have been the case, and despite the existence of a video of the Intoxilyzer procedure, the Crown did not seek to contradict Mr. McEwan's evidence on this point.
48I also accept Mr. McEwan's evidence that he raised the issue of when he would be released with special constables in the cell block area during his time in custody. His evidence is supported by the audio and video of his conversation with the special constable that fingerprinted him between 3:22 and 3:32 AM. This clip corroborates the pattern of 'passing the buck' that Mr. McEwan described in his evidence before me. I note also that Mr. McEwan was twice taken for fingerprints, with the second special constable being completely unaware that the procedure had already taken place more than two hours earlier. The fact that the second fingerprinting officer was unaware that Mr. McEwan had already been fingerprinted confirms for me the general lack of coordination amongst the special constables in the cell block that night.
49I am also supported in this conclusion by the evidence of Constable Wereley. Constable Wereley's evidence was that it was a matter of practice for him to check with detainees in the cell block area who were going to be released as to whether they had a responsible person who could be contacted to pick them up. He agreed in cross-examination that on the evening in question he may not have been particularly attentive to Mr. McEwan's release time. Constable Wereley had no independent recollection of any dealings with Mr. McEwan that night, nor did he record in his duty book any notes about the execution of his duties during his shift that night. Had he followed his usual practice and canvassed the issue with Mr. McEwan, I am satisfied that Mr. McEwan would have communicated to him the name and telephone number of his father, and of the existence of other phone numbers in his cell phone of persons who would facilitate his release. I am satisfied that Constable Wereley failed to follow his usual practice on this occasion.
50Section 498 of the Criminal Code sets out the circumstances in which a person who has been arrested without warrant can be detained by a peace officer or an officer in charge. Such a person is to be released as soon as possible unless the officer, on reasonable grounds, and having regard to all of the circumstances, determines that the person's detention is necessary in the public interest. "All the circumstances" includes the need to establish the identity of the person, secure or preserve evidence of or relating to the offence, preventing the continuation or repetition of the offence or another offence, or ensuring the safety and security of any victim of or witness to the offence: Section 498(1.1) Criminal Code.
51What is meant by "all the circumstances" in cases where persons have been charged with an "over 80" offence has been the subject of judicial consideration. In Regina v. Price, 2010 ONSC 1898, Justice Durno of the Ontario Superior Court of Justice, sitting as an appeal court, articulated a non-exhaustive list of the considerations at play for an officer in charge. These considerations include:
- the accused's blood alcohol level;
- whether the accused was charged with impaired driving;
- his or her level of comprehension;
- the administrative license suspension;
- the fact that the accused's vehicle would be impounded;
- whether there was a responsible person available to pick up the accused;
- whether the accused had a criminal record, and if so, its contents;
- whether the accused had outstanding charges;
- the accused's demeanour;
- the poor judgment that the accused would have exhibited by drinking and driving.
52As noted by Durno, J. in Price"it is only after an objective analysis of these factors and any other deemed relevant, that the officer in charge can make an informed decision on release. Being guided only by the blood-alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood-alcohol level should be given primary weight in the context of all the considerations, a breach may not be established": Price, supra at para. 93.
53In this case, the difficulty is that no such objective analysis appears, on the evidence before me, to have taken place. Mr. McEwan's evidence establishes a strong prima facie case of arbitrary detention that calls for some answer by the Crown. The Crown called the cell block officer in charge on the night of Mr. McEwan's arrest, Sergeant Wereley. His evidence was ultimately of no assistance to the Crown. Though he could give evidence of his usual practice when dealing with a person in Mr. McEwan's circumstances, Sergeant Wereley was unable to provide any evidence of what in fact happened in Mr. McEwan's case. As noted above, I find as a fact on the evidence before me that no assessment of Mr. McEwan's fitness for release took place in this case. No inquiries were made as to whether there was a responsible person who might be available to retrieve Mr. McEwan from the station. At best, Sergeant Wereley made a note on Mr. McEwan's file of his blood alcohol concentration readings when the Intoxilyzer process was complete. The circumstances of this case are very much akin to those before our Court of Appeal in R. v. Iseler. As in Iseler, those responsible for Mr. McEwan's incarceration and well-being following the breath testing procedure appear to have failed in their duty to protect the liberty interests of the detainee in their care.
54Mr. McEwan ought to have been canvassed as to whether a responsible person was available to pick him up. This was not done. Nor was any assessment made to determine whether Mr. McEwan was in a fit condition to be released on his own. I note that shortly after providing his second breath sample, Mr. McEwan was served with notice of his administrative driver's license suspension, and his car by this time would have been impounded. On the evidence before me, there was no criminal record to speak of, and Mr. McEwan had been polite and cooperative throughout his dealings with the police. There were a number of available responsible people that Mr. McEwan could have contacted to retrieve him from the police station, including his father and sister. I am satisfied that he would have been able to reach a responsible person to come and pick him up shortly after his breath sample procedure was concluded, had inquiries been made of him in a timely manner.
55There is also no evidence to contradict Mr. McEwan's position that he was releasable on his own at this time. Though there were some indicia of impairment noted by the breath technician, there was nothing to suggest that Mr. McEwan did not otherwise have control of his faculties or that he was a danger to himself or any other person were he to have been released shortly after he was returned to Constable Morris' custody at 1:47 AM. Indeed, as confirmed by the cell block video, Mr. McEwan was showing virtually no indicia of impairment by the time he was processed for fingerprints at 3:22 AM. There is no reason to believe that he would not have been able to safely take a cab home at 1:47 AM, just as he did upon his release at 6:00 AM. There was certainly no assessment done of Mr. McEwan's circumstances following the conclusion of the breath sample procedure that would suggest otherwise.
56For these reasons, I conclude that Mr. McEwan has established that his section 9 Charter rights were violated as a result of this over holding.
Issue #4 – Exclusion of Evidence
57Pursuant to section 24(2) of the Charter, once a breach has been found, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The burden of proof is on the Applicant on a balance of probabilities.
58Regina v. Grant, [2009] S.C.R. 353, outlines the test for the exclusion of evidence under section 24(2) of the Charter. A court must assess and balance the effect of admitting the evidence on society's confidence in the administration of justice having regard to the following criteria:
The seriousness of the Charter infringing state conduct;
The impact of the breach on the Charter protected interests of the accused; and
Society's interests in the adjudication of the case on its merits.
59Unlike many cases where the Charter breach occurs prior to the discovery of evidence, a section 9 breach as a result of "over holding" follows the discovery of the evidence. This however does not mean that a Charter breach occurring after the discovery of evidence cannot meet the section 24(2) threshold for excluding evidence. As outlined by Justice Laskin of the Ontario Court of Appeal in Regina v. Pino, 2016 ONCA 389, the following considerations should guide a court's approach to the "obtained in a manner" requirement in section 24(2):
- The approach should be generous, consistent with the purpose of section 24(2);
- The court should consider the entire "chain of events" between the accused and the police;
- The requirement may be met or the evidence and the Charter breach are part of the same transaction or course of conduct;
- Causal, temporal, or contextual, or any combination of these connections;
- The connection however cannot be too tenuous or too remote.
60Turning to whether these considerations are met in Mr. McEwan's case, I note first that the most troubling breach in this particular case was the over holding of Mr. McEwan following the provision of his two breath samples at the Ottawa police station. The evidence and the Charter breach were part of the same transaction or course of conduct. This is a breach that above all concerns Mr. McEwan's detention. This detention ran continuously from approximately 12:01 AM, when Mr. McEwan was first detained by Constable Morris, to 12:05 AM, when Constable Morris determined that he had grounds to arrest Mr. McEwan for impaired driving. It continued to 12:15 AM or so when Constable Morris made a breathalyzer demand of Mr. McEwan, to 1:47 AM when custody of Mr. McEwan was returned Constable Morris from the breath technician. Constable Morris filled out the booking sheet for the benefit of the officer in charge, to assist that officer in ascertaining whether or not to then release Mr. McEwan. The evidence and the Charter breach were all part of the same transaction.
61There also exists a clear contextual connection between the evidence and the section 9 breach. Mr. McEwan was brought to the station following his interaction with Constable Morris to obtain blood alcohol concentration readings from the Intoxilyzer machine. Those very same readings were marked on a booking sheet as a means of assisting in the determination of when Mr. McEwan ought to be released. The readings themselves were the only basis upon which Mr. McEwan remained in police custody after being charged with the impaired driving and over 80 offences. There existed a strong contextual connection between the evidence gathered in this case and the breach that subsequently occurred.
62Lastly, there is a temporal connection between the evidence gathered in the breach. Mr. McEwan's readings were provided at 1:23 AM and 1:45 AM. Custody was then returned to Constable Morris, who filled out the booking sheet by 1:52 AM. Rather than being released at that point in time, Mr. McEwan continued to be held. There is a close temporal connection between the breach and the evidence at issue.
63In short, I find that there exist causal, temporal, and contextual connections between evidence at issue and the section 9 Charter breach in this case. I am supported in these conclusions by the reasoning of Justice Hawke in Regina v. Lorenzo, 2016 ONCJ 634, adopted by Justice Perron in Regina v. Rush, 2018 ONCJ 89.
64I turn now to a consideration of the three Grant criteria.
I. The seriousness of the Charter infringing state conduct
65The officer in charge of the cell block at 474 Elgin St. had a duty to release Mr. McEwan after his arrest unless he had reasonable grounds to detain him in accordance with section 498(1.1). This provision the Criminal Code applies to every person arrested and detained without a warrant. The officer making the decision whether or not to release such a person is required to give due consideration to all of the circumstances. In this case, Sergeant Wereley was well aware of his responsibilities as the cell block officer in charge. He testified as to the practice he followed in cases where the person in his custody was someone who had blown "over 80". This practice was a result of training he had received from his predecessor officer-in-charge. He understood not only his responsibilities, but had a practice in place whereby he would assess each such person's circumstances.
66Sergeant Wereley failed to execute his responsibilities and make the required assessment in Mr. McEwan's case. Upon taking custody of Mr. McEwan, he did not inquire as to whether there was a responsible person who could pick him up, nor did he assess whether Mr. McEwan was fit to release on his own. He failed to keep any duty book notes in which he tracked the execution of his responsibilities. Had he tracked his activities in his duty book or elsewhere, it would have been manifestly less likely that Mr. McEwan or any other detained person under Sergeant Wereley's watch that night would have fallen through the cracks.
67Mr. McEwan's detention after being charged with the impaired operation and over 80 offences lasted four hours longer than was necessary in the circumstances. This loss of liberty emanated from Sergeant Wereley's neglect of a duty he was well aware that he had. This represents a serious violation of Mr. McEwan's right to be free from arbitrary detention.
68While the section 9 violation in relation to the over holding in and of itself may merit the exclusion of evidence in this case, this serious violation is compounded by the fact that there were other material Charter violations that took place in respect of this accused. As has been noted by a number of cases, multiple breaches of an accused person's Charter rights is a relevant factor engaging a finding of the seriousness under the first branch of the Grant analysis. Where there are multiple breaches, the Charter violation will ordinarily be found to be more serious: Regina v. Steele, 2014 ONCJ 583; Lorenzo, supra; Regina v. Mann, 2018 ONSC 1703.
69Mr. McEwan was subjected to an investigative detention in circumstances where he was neither immediately advised of the reason for his detention, nor of his right to counsel at the time of such detention. Constable Morris sought and received from Mr. McEwan responses to questions that assisted him in forming grounds for an arrest. Moreover, after arresting Mr. McEwan, Constable Morris waited a further ten minutes, in the absence of any justifiable reason for so doing, to provide Mr. McEwan with his rights to counsel. Clearly this was not done without delay, as section 10(b) requires. Constable Morris demonstrated an utter lack of familiarity with the duties imposed upon him, as a peace officer, by the Canadian Charter of Rights and Freedoms.
70The breaches which occurred in this case are not of a kind that ought to be condoned by this court. They are not merely technical breaches. The Grant court was careful to note that ignorance of Charter standards must not be rewarded or encouraged, and further that negligence cannot be equated with good faith. Constable Morris was inexplicably unaware of the constitutional right of a detained or arrested person to the prompt communication of his or her right to counsel. Sergeant Wereley, though familiar with the scope of his duties and the significance of his role vis-Ã -vis a detained person, negligently failed to carry out his responsibilities as they related to Mr. McEwan. As Chief Justice McLachlin noted in R. v. Harrison, 2009 SCC 34, courts should dissociate themselves from police activity "where the police knew (or should have known) that their conduct was not Charter-compliant."
71Constable Morris ought to have known that his conduct was not Charter compliant. For an experienced officer to be completely ignorant of when a detained or arrested person is to be advised of and provided their right to counsel does not even begin to approach "good faith". It is far closer to the concerns identified by McLachlin, C.J. in Harrison. The conduct of Constable Wereley, is in the circumstances an example of the kind of negligence that concerned McLachlin, C.J. in that same case.
72In this case, the seriousness of the Charter-infringing state conduct strongly favours exclusion of the evidence.
II. Impact of the breach on the Charter protected interests of the accused
73In this case Mr. McEwan's arbitrary and unjustified imprisonment lasted a period of roughly four hours. During this time, he was unable to obtain any information about how or when he would be released. As was noted by Justice Iacobucci in R. v. Hall, 2002 SCC 64"[l]iberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty". The presumption of innocence is the golden thread that runs through our system of criminal law, and is guaranteed in section 11(d) of the Charter. In our system of justice, incarceration is imposed as punishment only after a person has been convicted of an offence and sentencing judge has heard submissions as to the appropriate sentence of the circumstances. Cases of "over holding" threaten these basic principles of criminal law. In this case, the over holding of Mr. McEwan represented a punishment before the determination was made as to his ultimate guilt or innocence.
74Moreover, in relation to the section 10(b) violation that occurred immediately following Mr. McEwan's detention, as noted above, Mr. McEwan provided responses to Constable Morris's queries that assisted the officer in forming the grounds for his further detention and arrest. Mr. McEwan's right to silence suffered as a direct result of Constable Morris's failure to advise him of his right to counsel.
75In the circumstances, there was a very real and serious impact on the Charter protected interests of Mr. McEwan that was occasioned by the breaches in this case.
III. Society's interest in the adjudication of the case on its merits
76The breath readings obtained in this case, along with Constable Adams' observations during the breath test procedure, are reliable evidence, and exclusion of this evidence would obviously lead to a situation where the Crown would lose the ability to prove the "over 80" charge. Exclusion of Constable Adams's observations might also hamper to some degree the Crown's case on the impaired driving charge. As a result, society's interests in adjudication on the merits favours inclusion of the evidence.
Conclusion regarding section 24(2) of the Charter
77Having balanced the three Grant factors, and having considered the Ontario Court of Appeal's recent decision in Jennings and the subsequent analysis of that reasoning by Justice de Sousa in R. v. Mann, supra, I conclude that the Charter breaches that occurred in this case require the exclusion of evidence. Although this means the exclusion of important evidence to the prosecution in this particular case, I must nonetheless give appropriate weight to the need to preserve the public's confidence in the administration of justice, long-term. Public confidence in the administration of justice would not be enhanced by permitting into evidence the Intoxilyzer readings or the observations of Constable Adams. Were I not to exclude this evidence, the message to the public would necessarily be that the courts condone and reward the failure of experienced police officers to be aware of or to observe the important responsibilities given to them under the Charter of Rights and Freedoms.
78Given that I am excluding from evidence the Intoxilyzer readings in this case, along with the observations of alleged impairment made by Constable Adams during the breath testing procedure, the "over 80" charge before the Court is dismissed.
Issue #5 – Proof of impairment beyond a reasonable doubt
79Before convicting an accused person of impaired driving a trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or drug. If the evidence of impairment establishes beyond a reasonable doubt any degree of impairment of the ability of drive, ranging from slight to great, then the offence has been made out. This has been the law since our Court of Appeal's decision in Regina v. Stellato. Impairment is an issue of fact which I must decide on the evidence. If the evidence of impairment by alcohol of the ability to drive in this case is so frail as to leave me with a reasonable doubt, the accused must be acquitted.
80Mr. McKinnon, the security staff working at the Barley Mow pub on the evening in question, was sufficiently concerned about Mr. McEwan's ability to drive that he felt it necessary to call the police. While this in and of itself might be of some evidentiary value, it is important that as the trier of fact, I have a means of assessing the circumstances that caused him to come to this conclusion. As Mr. McKinnon himself noted in his evidence, determining whether a person is intoxicated or not is difficult, as it is always "subjective".
81Unfortunately, Mr. McKinnon was not able to articulate any of the observations he made that led him to call the police. He could not recall what prompted his initial interaction with Mr. McEwan, nor could he describe a single thing in Mr. McEwan's demeanor, appearance, speech, balance, gait, or fine motor control that would support his conclusion of impairment of the ability to operate a motor vehicle. He could describe nothing unusual or untoward about the manner of Mr. McEwan's driving when he was moving and then parking his car. His evidence was devoid of any objective markers that would support a conclusion of impairment of Mr. McEwan's ability to drive.
82I also have concerns about the effect to be given to the observations of impairment described by Constable Morris, given the totality of the evidence in this case. Constable Morris' observations of Mr. McEwan included an odour of alcohol on Mr. McEwan's breath"body tremors", glassy eyes, slurred speech, unsteadiness on his feet and shuffling of his feet. These observations were made in the less than four minutes that elapsed between his arrival on scene and his arrest of Mr. McEwan.
83Counsel for Mr. McEwan properly points out that Constable Morris could not give any examples of words or phrases slurred by Mr. McEwan, and that the glassy eyes and odour of alcohol detected by the officer are prone to competing inferences beyond impairment by alcohol. I am mindful that I am not to assess the evidence of alleged impairment on a piecemeal basis, but rather am to consider the indicia of impairment in their totality. Though each "sign" or "indicia" of impairment might itself have a competing inference – for example, glassy, red eyes could be equally attributable to fatigue in the early morning hours as it could to alcohol consumption, and the odour of alcohol may signal consumption and not necessarily impairment – I am to look at the "whole picture" to ascertain whether the evidence of impairment satisfies me beyond a reasonable doubt.
84In this case, I also have Mr. McEwan's evidence as to his own state on the evening in question. Mr. McEwan struck me as a reliable witness, whose evidence was not seriously diminished through cross-examination by able Crown counsel. His evidence that he shakes when nervous was borne out as he testified before me, and I cannot reject his evidence that this was the same phenomenon he experienced when being questioned by Constable Morris and described by Constable Morris as "body tremors". His description of himself as a lifelong shuffler of his feet was also effectively unchallenged in cross-examination. He admitted to consuming alcohol, which may well legitimately account for the odour of alcohol on his breath. Though he did not seek to provide an explanation for each and every sign of impairment testified to by Constable Morris – for example, he did not address the alleged slurring of his speech – I am to look at the evidence as a whole, and determine whether I am ultimately satisfied of his guilt beyond a reasonable doubt. I am certainly not to hold his evidence to a higher standard than that of the Crown witnesses in the case.
85In the context of the evidence as a whole, and applying the criteria outlined in Regina v. W.(D.), I am unable to reject Mr. McEwan's evidence as it relates to the indicia of alleged impairment. Though there is evidence consistent with impairment of Mr. McEwan's ability to drive a motor vehicle, I do not find that it meets the Stellato threshold, and as such he must be acquitted of the charge of impaired operation of a motor vehicle.
Released: May 1st, 2018
Signed: Justice Trevor A. Brown
