Reasons for Judgment

ONTARIO COURT OF JUSTICE

DATE: 2023·02·08 COURT FILE No.: Lindsay 20-0449

BETWEEN:

HIS MAJESTY THE KING

— AND —

BRETT HICKS

Before: Justice S.W. Konyer

Heard on: May 20, September 16, December 2, 2022 and February 3, 2023 Reasons for Judgment released on: February 8, 2023

Counsel: M. Stellato, for the Crown C. Avery, for the defendant Brett Hicks

KONYER J.:

[1] Brett Hicks is charged with alcohol impaired driving and refusing to provide a breath sample on April 9, 2020. There is no dispute that he was driving after having consumed some alcohol, but Mr. Hicks says the evidence as a whole falls short of proving beyond reasonable doubt that he was impaired to any degree. There is also no dispute that he refused to comply with a demand that he provide breath samples to a qualified technician for analysis. Mr. Hicks makes three arguments on the refusal charge: first, he says the demand was not lawful since the officer relied on a flawed approved screening device (ASD) test to form his grounds for the breath demand; second, he argues that the police breached his right to counsel and that his refusal was not unequivocal as a result; third, he argues that he had a reasonable excuse for his refusal based on legitimate fears of contracting the Covid-19 virus from the breath testing equipment. In the alternative, if the evidence is sufficient to support a finding of guilt on either count, he argues that the charges ought to be stayed because of state misconduct. Specifically, he claims that his right to be secure from unreasonable search and seizure, guaranteed by s.8 of the Canadian Charter of Rights and Freedoms was infringed by the failure of the police to provide him with adequate privacy in the holding cell toilet, and by their degrading treatment of him following his use of the toilet. He seeks a stay of proceedings as a remedy.

[2] The Crown position can be summed up as follows. The evidence establishes beyond reasonable doubt that Mr. Hicks’ ability to drive was impaired to at least some degree by alcohol. The arresting officer was not required to wait to perform the roadside test in the circumstances, and the breath demand was lawful. The police provided sufficient information to Mr. Hicks about his options for speaking to counsel, and took adequate steps to contact his counsel of choice. He then spoke to duty counsel and unequivocally refused to comply with the lawful demand for a breath sample. Any Covid fears expressed by Mr. Hicks were feigned and cannot constitute a reasonable excuse for his refusal. The police did not conduct the search in an unreasonable manner by video recording the cell toilet since Mr. Hicks was informed of this fact and was offered a privacy gown, nor was his treatment following his use of the toilet unreasonable. If there was a breach, a stay of proceedings is not the appropriate remedy.

[3] Therefore, the issues I must decide in this case are as follows:

• Has the Crown proven beyond reasonable doubt that Mr. Hicks’ ability to drive was impaired by alcohol?
• Was the breath demand lawful?
• Did the police breach Mr. Hicks’ right to counsel, and if so, did their actions render his refusal equivocal or provisional?
• In the alternative, did Mr. Hicks’ fear of acquiring or spreading the Covid-19 virus constitute a reasonable excuse for his refusal?
• Did the police conduct the search of Mr. Hicks in an unreasonable manner, and if so, is a stay of proceedings the appropriate remedy?

[4] I will first summarize the evidence. This matter proceeded by way of a blended Charter voir dire and trial. I heard from 3 Crown witnesses – the arresting officer, a second officer who attended the scene of the arrest, and a third officer who also attended the scene and acted as the qualified technician. Mr. Hicks testified in his own defence on both the Charter voir dire and the trial proper.

Summary of the evidence

[5] On April 9, 2020, shortly before 3:00 pm, the Haliburton Highlands OPP received a complaint of a suspected impaired driver. A description of the vehicle, its location and direction was provided. PC Darling was in the vicinity and responded. Meanwhile, PC Allore, who has since retired, heard the call while at the detachment. Based on the vehicle description and prior encounters with Mr. Hicks in the same area, he formed a belief that Mr. Hicks might be the driver. For reasons that were never explored, he chose not to broadcast this important information over the police radio where it would have been available to any officer, and a record would have been kept. Instead, he called PC Darling on his police-issued cell phone, relayed his suspicion, provided a plate number for the vehicle and an address for Mr. Hicks. PC Darling, a police officer for less than one year, drove to the address, which was on a side road. This was to be his second impaired driving investigation.

[6] As he approached Mr. Hicks’ address, he saw a vehicle matching the description stopped improperly, blocking lanes of traffic. As he got closer, he saw the driver take a drink from a can, and then put the vehicle in motion. He immediately conducted a traffic stop, and approached the driver and sole occupant of the vehicle, who was Mr. Hicks. He saw a can of ginger ale in the console, demanded it and sniffed the contents. He said he did not detect an odour of alcohol from the can, but it did not smell like ginger ale either. He said that he failed to observe several empty alcohol containers sitting in plain view on the passenger seat.

[7] He detected an odour of alcohol emanating from Mr. Hicks when they spoke, so he immediately asked Mr. Hicks to step out of the vehicle and demanded that he provide a sample of his breath into an ASD. From his recent training, PC Darling knew that the presence of mouth alcohol could produce an unreliable result on the ASD. He agreed that if there was reason to believe that Mr. Hicks had recently consumed alcohol, he should have delayed administering the ASD for 15 minutes in order to allow any residual mouth alcohol to dissipate. He turned his mind to this question because he had seen Mr. Hicks drinking from a can immediately before the traffic stop combined with the odour of alcohol on his breath. He explained that because he did not know what was in the can, he felt there was no reason to delay the ASD test. He also agreed that he did not have sufficient grounds to arrest Mr. Hicks in the absence of the ASD result.

[8] Mr. Hicks failed the ASD test and was arrested for driving with more than the legal limit of alcohol in his blood. He was promptly informed of his right to counsel. When asked if he understood this right, he responded “lawyer, lawyer”. He was then cuffed and lodged in PC Darling’s cruiser.

[9] PC Ronson arrived on scene at the time Mr. Hicks was being lodged. He searched Mr. Hicks’ vehicle, and saw the can of ginger ale. On the front passenger seat he also saw an empty wine bottle and two empty cans of Twisted Tea, an alcoholic beverage that comes in large and brightly coloured cans. He agreed with the suggestion that these items were in plain view and hard to miss. On the front passenger floor he also found an LCBO bag containing a 4 pack of tequila coolers, one of which was missing, and a receipt from a local LCBO store with a time stamp of earlier that afternoon.

[10] For reasons that were never explored, PC Allore also attended the scene, despite the fact that it was a drive of 12-14 minutes from the detachment, and despite the fact that two officers were already on scene to deal with a routine impaired stop. He also searched Mr. Hicks’ vehicle and made the same observations as PC Ronson. He then returned to the detachment and begin readying the Intoxilyzer for use.

[11] While being transported to the detachment, Mr. Hicks told PC Darling that he had reason to believe he was infected with Covid and asked to be taken to the hospital. PC Darling declined this request, but did alert the detachment of Mr. Hicks’ claims. Once they arrived, PC Darling donned personal protective equipment (PPE) and provided an N-95 mask to Mr. Hicks. It is worth noting that this incident occurred about 3 weeks after a provincial lockdown was announced to combat the spread of the Covid-19 virus.

[12] PC Darling asked Mr. Hicks if he had a particular lawyer that he wanted to speak to and was provided the name Jonathan Rosenthal. He asked PC Ronson to call Mr. Rosenthal while he took steps to decontaminate his equipment. Neither officer was familiar with Mr. Rosenthal, and neither asked Mr. Hicks if he had a phone number or contact information for him.

[13] PC Ronson performed a google search on the internet for Mr. Rosenthal and located an office address in Toronto along with a phone number. He was unsure whether he had logged onto the website for Mr. Rosenthal’s firm or where on the internet he acquired this information. He placed a call to the phone number he located at 4:04 pm. This was a Thursday, and a time when the province was largely under lockdown except for essential services. All out of custody criminal cases had been suspended as of March 16, 2020 and would remain so for several months. Perhaps unsurprisingly, there was no answer at Mr. Rosenthal’s office line, and the officer left a voice message.

[14] PC Ronson conveyed this information to PC Darling, who told Mr. Hicks that his lawyer had not answered or called back. He told him that he could speak to duty counsel, and then call his own lawyer later. Mr. Hicks said that he did not want to speak to duty counsel, and insisted on speaking to Mr. Rosenthal. Despite this, PC Darling placed a call to duty counsel at 4:11, seven minutes after PC Ronson left a voice mail at Mr. Rosenthal’s office number. When duty counsel had not called back by 4:25, he made a second call. Duty counsel returned this call at 4:37, and Mr. Hicks spoke to duty counsel at this time.

[15] Neither officer made efforts to locate an alternate number for Mr. Rosenthal, including asking Mr. Hicks if he knew how to reach his counsel of choice. Mr. Hicks testified that he had a number for Mr. Rosenthal in his cell phone. Neither officer informed Mr. Hicks of the steps they had taken to acquire Mr. Rosenthal’s contact information. Nor did they inform him that he had the right to wait a reasonable period of time for his counsel of choice to return the call, and that the police had an obligation to hold off their investigation until he had been given a reasonable opportunity to consult with the lawyer of his choice.

[16] While efforts were being made to reach counsel, Mr. Hicks was lodged in a cell which was monitored by a video camera. The video feed was broadcast throughout the police station and also recorded. it was played during the trial, and showed that there was large signage stencilled on the wall of the cell informing detainees that they are on camera. In the booking area, there was signage informing detainees that they can request a privacy gown. Mr. Hicks testified that he was aware that he could ask for a privacy gown, but never did.

[17] Shortly after being lodged in the cell, Mr. Hicks defecated in the toilet. After he finished, he stood up and looked around the cell. He said he was looking for toilet paper. PC Darling agreed that the cells do not contain toilet paper, soap or hand sanitizer, but said these items were available on request. Unable to find toilet paper, Mr. Hicks then removed his N-95 mask, used it to wipe himself and set the mask in the sink. PC Darling said he was near the cell block door, observed these events, but never offered toilet paper to Mr. Hicks. He said that Mr. Hicks never asked for toilet paper, and that he thought Mr. Hicks had soiled his mask out of spite. He also never offered soap or hand sanitizer to him. Mr. Hicks said he shouted out for toilet paper but no one responded. The police do not audio record the cell or booking area for reasons that are unknown to me, so I cannot confirm the account of either witness on this point.

[18] After he did speak to duty counsel, Mr. Hicks was taken to the breath room, where he was turned over to the qualified technician, PC Allore. The breath room was recorded on audio and video. PC Allore began the breath testing process by confirming rights to counsel. He told Mr. Hicks that he understood that he had spoken to duty counsel, to which Mr. Hicks responded “yes, but I would like to talk with my own lawyer.” PC Allore told him “you can talk to your own lawyer anytime, you have to do this now”. PC Darling was present for this exchange. Neither officer explained to Mr. Hicks that he had the right to wait a reasonable period for his counsel of choice to respond, and neither officer explained that the police are obliged to hold off their investigation until he had that opportunity. PC Darling was a newly trained officer and agreed that he had received training on the importance of the right to counsel. He agreed with the suggestion that he knew PC Allore was wrong when he told Mr. Hicks “you have to do this now” once Mr. Hicks asserted a clear wish to speak to counsel of choice first. He denied the suggestion that he failed to speak up because PC Allore was a senior officer.

[19] As PC Allore continued with the testing process, Mr. Hicks raised concerns about the sanitation of the breath-testing equipment. He expressed a fear of contracting the Covid-19 virus and asked questions about decontamination. PC Allore responded by attempting to explain the air blank process on the Intoxilyzer device. Both Mr. Hicks and PC Allore became upset during this exchange, began raising their voices and speaking over one another. PC Allore eventually told him “we are not playing this game” after which Mr. Hicks refused to provide a sample, stating “I will take my chances in court.”

[20] Mr. Hicks testified that he had spent the previous night at his girlfriend’s home in Haliburton. He said he genuinely feared that he had been infected with the Covid-19 virus due to symptoms he was experiencing. He described himself as a hypochondriac, and based on media information at the time, he thought the infection could be fatal. Despite this belief, he did not self-isolate, but instead travelled to his girlfriend’s home, which she shared with a roommate. He did so because she asked him to, and also because he believed she was probably already infected.

[21] He said they consumed alcohol together the previous night. On the day of his arrest, he consumed one drink of vodka and ginger ale, then left to drive home, which was about 20 minutes away. He took a can of ginger ale laced with vodka for the drive home. Despite his belief that he was potentially contagious with a deadly virus, he stopped at the local LCBO to pick up more alcohol on his way home. He consumed a full can of a tequila cooler that he purchased, then resumed drinking the open can of vodka and ginger ale which was found in his vehicle when he was stopped by police.

[22] He said that he wanted to receive legal advice from Mr. Rosenthal specifically, whom he described as a “DUI specialist lawyer”. He spoke to duty counsel because he felt it was the only option being provided by police, but he was unsatisfied with their advice and still wanted to speak to Mr. Rosenthal. He said he used his mask to wipe himself after defecating because no one responded to his request for toilet paper and he had no other choice. He said that he refused to provide a breath sample to the qualified technician because the police had not let him speak to Mr. Rosenthal, and also because he had concerns that he could spread the virus to someone else if he already was infected, or that he could acquire the virus if he was not already infected.

[23] Mr. Hicks’ speech was recorded on the breath room video, and he has an unusually slow and deliberate manner of speaking. His manner of speech when he testified in court was not dissimilar. None of the officers described any difficulty with walking, balance or physical coordination. The booking room, holding cell and breath room video all confirm that his walking, balance and coordination appeared normal.

[24] This completes my review of the evidence and I now turn to the issues raised by counsel. I have reviewed all of the cases provided. I will not be referring to them in great detail, but will attempt to distill the applicable law from those authorities.

Has the Crown proven impairment beyond reasonable doubt?

[25] The Crown must prove beyond reasonable doubt that Mr. Hicks’ functional ability to operate a motor vehicle was impaired by alcohol. Any degree of impairment, from slight to great, is sufficient. There is no evidence here of bad driving. The unchallenged evidence that he had an odour of alcohol on his breath and bloodshot eyes is capable of supporting an inference of consumption; however, these observations are weak indicia of impairment. Although police witnesses described his speech as slurred, none of the officers who dealt with Mr. Hicks testified that they were familiar with his normal pattern of speech, or provided any basis for their conclusion of slurring. Having listened to Mr. Hicks speak on the breath room video and testify in court, I agree with the defence that he has an unusual cadence as well as a slow and deliberate manner of speaking. I am unable to conclude that his speech while at the police station was significantly different from his usual manner of speaking.

[26] Taking into account all of the evidence, including the physical evidence of good balance, gait and coordination, I am not satisfied beyond reasonable doubt that Mr. Hicks was impaired by the consumption of alcohol.

Was the breath demand lawful?

[27] Section 320.28(1)(a)(i) of the Criminal Code authorizes a police officer to make a demand to a person to provide samples of their breath for analysis by a qualified technician where the officer has reasonable grounds to believe the person committed the offence of driving while impaired by alcohol or the offence of driving with an excessive blood alcohol concentration. Here, PC Darling testified that he made the breath demand because he believed, based on the fail result from the ASD, that Mr. Hicks had been driving with an excessive blood alcohol concentration. An essential element of the refusal charge that Mr. Hicks faces is that the demand was proper – that is, it was based on reasonable grounds to believe that Mr. Hicks had committed the offence of driving with excessive blood alcohol.

[28] Since PC Darling formed his belief once Mr. Hicks failed the ASD, then the question becomes whether it was reasonable for him to rely on the ASD result. It is common ground that in the absence of that result the officer lacked sufficient grounds to make a breath demand. PC Darling clearly understood that the ASD test would not produce a reliable result if Mr. Hicks had recently consumed alcohol. In such circumstances he was trained to wait for 15 minutes for the dissipation of any residual mouth alcohol.

[29] I agree with the defence that PC Darling ought to have waited for 15 minutes before administering the ASD in this case. He was responding to a complaint of a suspected impaired driver. He saw the driver drinking from a ginger ale can, yet the beverage within that can did not smell like ginger ale. The person who had just been drinking from that can had what the officer described as a strong odour of alcohol on his breath. The only reasonable conclusion, in my view, is that the beverage within the can likely contained alcohol. PC Darling’s claim that he did not believe the can contained alcohol is difficult to credit. He agreed he was suspicious that this was the case and that he could not eliminate this possibility after sniffing the can. When he later explained his reasons for making the breath demand to the qualified technician, he included the observation of Mr. Hicks drinking from the can. Logically, this would only be relevant to support grounds for a breath demand if he thought the can did contain alcohol.

[30] If PC Darling did subjectively believe that Mr. Hicks was not consuming alcohol immediately before the traffic stop, that belief was not reasonable in the circumstances, and he should have waited, as he was trained to do, for any potential mouth alcohol to dissipate before administering the ASD. The Ontario Court of Appeal explained the importance of doing so in R. v. Einarson, 2004 ONCA 852, [2004] O.J. No. 852 (C.A.), at para. 14:

A police officer who has cause to make a demand under s. 254(2) of the Criminal Code must administer the test "forthwith" if the detention is to remain within constitutionally permissible limits. At the same time, it is well-known by police officers that where a driver has consumed alcohol in the 15 to 20 minutes before the test is administered, the result of the test may be unreliable because of the presence of residual mouth alcohol. The whole purpose of administering the test under s. 254(2) is to assist the officer in determining whether there are reasonable and probable grounds to arrest the driver for a drinking and driving offence. If the officer does not, or reasonably should not, rely on the accuracy of the test results, it cannot assist in determining whether there are reasonable and probable grounds to arrest. Administering the test without delay in those circumstances would be pointless and would defeat the purpose for which the test is administered.

[31] The court reaffirmed this principle in R. v. Notaro, 2018 ONCA 399, [2018] O.J. No. 2537 (C.A.), at para. 43: “if the information known to an arresting officer about a suspect’s residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established”. Applying these principles to Mr. Hicks’ case, I find that PC Darling knew, or ought to have known that administering the ASD to him without delay could produce an unreliable result. The fail result was therefore meaningless. Since grounds for the breath demand relied on this result, the demand was made without proper grounds. I find that it was not a lawful demand and Mr. Hicks did not commit an offence by refusing to comply with it.

Did the police breach Mr. Hicks’ right to counsel, and if so, did their actions render his refusal equivocal or provisional?

[32] I agree with the Defence that the police breached Mr. Hicks’ right to counsel by failing to make any meaningful efforts to locate his counsel of choice. The Ontario Court of Appeal recently described the obligations on police in R. v. Jarrett, 2021 ONCA 758, at para. 43:

There are a number of ways in which the police may facilitate a detainee's right to immediate contact with counsel. Where the police assume the responsibility of making first contact, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have "assumed the obligation to pursue [the detainee's] constitutional right to [access counsel] as diligently as she would have": R. v. O'Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29-33. "Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing": Doobay, at para. 30. In this case, where the police undertook to contact a lawyer on the appellant's behalf, it was unreasonable for them to have left a single voicemail and ended their efforts there.

[33] It was unreasonable for the police in Mr. Hicks’ case not to make further efforts to reach his counsel of choice. He was also not told that he had the right to wait a reasonable period of time for his counsel of choice to call back before being conscripted to provide evidence against himself. In R. v. Edwards, 2022 ONSC 4409, [2022] O.J. No. 3238 (S.C.J.), a summary conviction appeal judgment that is binding, the police called and left a message for the accused’s counsel of choice at a number he provided them from his own cell phone, then 12 minutes later called duty counsel. They did not inform him that he had the right to wait longer, that the police had a duty to hold off their investigation, nor did they ask him what further efforts he wanted them to make to reach his counsel. The summary conviction appeal court judge found that the police breached their informational duties: see para. 72. She also found that they breached their implementational duties: “[h]aving taken carriage and responsibility for contacting Mr. Edwards’ counsel of choice, the police had a duty to act with reasonable diligence in their efforts to facilitate contact, and hold off taking further investigative steps until the reasonable opportunity had elapsed”: para. 73. This reasoning applies equally to Mr. Hicks. He has proven a breach of his s.10(b) Charter right to counsel.

[34] In my view, the seriousness of the breach is also aggravated by the ongoing police conduct in ignoring his request to revisit the issue. He plainly told the qualified technician that he was not satisfied with his call to duty counsel and that he wanted to speak to his counsel of choice. This request was met with impatience and open hostility on the part of PC Allore. To make it worse, PC Darling, who was aware of his obligation to hold off and provide his detainee with a reasonable period of time for counsel of choice to respond, ignored the constitutional obligations that rested on his shoulders.

[35] The defence is not seeking an exclusion of evidence as a result of this breach, so I do not have to consider whether admitting the evidence would bring the administration of justice into disrepute. I will say, however, that I am troubled by the dismissive attitude of the police towards Mr. Hicks’ right to consult with counsel of choice. Their efforts were token and not indicative of good faith. This is also not the first case involving the OPP in this jurisdiction where I have made similar findings about police indifference towards the right to counsel, and the pattern is troubling. I appreciate that I have not heard argument on s.24(2) of the Charter, but it seems to me that Mr. Hicks would have had a persuasive case for exclusion of the evidence of his refusal.

[36] The defence argues instead that Mr. Hicks’ refusal was only provisional – he was refusing unless and until he was permitted to speak to his counsel of choice. Since the police failed to comply with their informational and implemental duties under s.10(b) of the Charter, it cannot be said that his refusal became final. There is support for this position.

[37] In R. v. Mandryk, 2012 ONSC 3964, Code J. considered the relationship between the actus reus of the refusal offence and the right to counsel. He cited a line of cases at para. 65 which held

that where the accused seeks access to counsel's advice, either shortly before or shortly after an initial refusal to comply with the s. 254(3) demand of the Criminal Code, then the initial indication of the accused's intentions is treated as provisional. It is only after access to counsel that the initial provisional indication becomes final. This is simply a matter of reasonable and fair construction of the statutory terms, consistent with the Charter of Rights and with the Bill of Rights, since the accused is detained and is required to make a decision with significant legal consequences and is seeking access to counsel's advice. An important factual issue in all these cases is whether the request to speak to counsel, and the initial refusal to comply with the demand, are really part of one ongoing conversation.

[38] This reasoning was followed in R. v. Doobay, 2019 ONSC 7272, [2019] O.J. No. 6387 (S.C.J.), where the court found that the accused’s right to counsel had been breached because the police failed to take reasonable steps to locate contact information for counsel of choice, failed to inform the accused that he had the right to wait, that the police had a duty to hold off, and failed to inform him of means to access other private counsel. This was also a refusal case where the police left messages for counsel of choice at an office number but did not take any other steps to find alternate contact information. The court found that the police had breached the accused’s s.10(b) rights.

[39] In Doobay, the accused specifically told the qualified technician that he would not provide a breath sample until he had spoken to his counsel of choice: see para. 17. The court held that

he was still protected by his s. 10(b) rights at the point that the police purported to compel him to provide a breath sample. In these circumstances, his refusal to provide a sample -- which was expressly framed as a conditional refusal not to provide a sample until he had spoken to his lawyer -- cannot in my view constitute the actus reus of the refusal offence.

[40] Mandryk and Doobay are both summary conviction appeals and thus constitute binding authority. In Mr. Hicks’ case, I also find that his refusal was provisional – he effectively told the police that he was not going to comply with the breath demand unless they fulfilled his right to speak to counsel of choice. Since I have concluded that the police breached their s.10(b) duties, it follows that Mr. Hicks’ refusal did not become unequivocal.

Did Mr. Hicks’ Covid-19 fears constitute a reasonable excuse?

[41] I am unable to accept Mr. Hicks’ claim that he was fearful about either contracting or spreading Covid during his dealings with police. His behaviour is inconsistent with a good faith belief that he had been infected with a contagious and potentially fatal virus. His entire course of conduct, from staying at his girlfriend’s home to stopping at the LCBO undermines this claim. I also do not believe his testimony that he had a genuine fear of contracting Covid from the breath testing equipment in the detachment. If he were genuinely afraid about touching a sealed mouthpiece, presumably he would have also voiced that concern at the roadside when asked to provide a sample into the ASD. I expect that Mr. Hicks was feigning Covid fears as an excuse to try and derail the police investigation. I find that his fear was not genuine and does not constitute a reasonable excuse.

Did the police conduct the search of Mr. Hicks’ in an unreasonable manner, and if so, is a stay of proceedings the appropriate remedy?

[42] For the reasons above, I find that Mr. Hicks is entitled to an acquittal on both charges. In the event that I am incorrect in these findings, I will also consider the merits of his application to stay the proceedings. I find that the police failed to carry out the search of Mr. Hicks’ following his arrest in a reasonable manner. He was entitled, while in police custody, to be treated in a manner that respected his basic human dignity. The police here failed to do so.

[43] There are legitimate reasons why police need to monitor detainees while they are housed in holding cells within police detachments: to ensure their safety, to prevent destruction of evidence, to prevent damage to property, and to maintain a record in the event of a claim of mistreatment. At the same time, detainees have a reasonable expectation of privacy while in police holding cells, and the courts generally expect this right to be protected by the use of some method to ensure privacy when a detainee needs to use the toilet. Some police forces accomplish this by technological means – blacking out or pixelating the toilet area. Other forces, like the OPP, make privacy gowns available. Mr. Hicks said he knew that he could request a gown. In the absence of evidence that such a request would have not afforded him an appropriate level of privacy, I cannot find that the OPP policy is deficient. Mr. Hicks could have availed himself of the means of securing some privacy while using the toilet.

[44] The real problem in this case is the degrading manner in which he was treated while he did use the toilet. PC Darling, who as the arresting officer had the responsibility for Mr. Hicks’ treatment, knew that he had moved his bowels. He knew the cell did not contain any toilet paper, soap or hand sanitizer. He knew that Mr. Hicks, his detainee, had no means of cleaning himself. He literally stood by and watched as Mr. Hicks searched in vain for toilet paper and did nothing. He asserted a belief that Mr. Hicks was acting out of spite when he used his N-95 mask to wipe himself. From my perspective, the actions which appear to have been motivated by spite were those of the officer himself. The treatment of Mr. Hicks’ in the holding cell was simply appalling.

[45] For reasons that I do not fully understand, Mr. Hicks was treated by the police in a hostile and unprofessional manner throughout his time at the detachment. It is clear that PC Allore, the senior officer on duty, was familiar with Mr. Hicks. He communicated his suspicions about the identity of the impaired driving suspect confidentially to PC Darling rather than using the radio system, then attended the scene for no reason. He then acted as the qualified technician, and treated Mr. Hicks with hostility from the moment he was brought into the breath room. The police made token efforts to reach his counsel of choice and were dismissive of his complaints. His treatment in the holding cell was degrading. All of this suggests an animus on the part of the police towards Mr. Hicks on this occasion.

[46] The degrading and unprofessional manner in which Mr. Hicks was treated constituted part of the search conducted in an effort to obtain breath samples. The search was conducted in a patently unreasonable manner. Mr. Hicks has proven a breach of his s.8 Charter right to be secure from unreasonable search and seizure.

[47] The issue then becomes whether a stay of proceedings is the appropriate remedy. A stay of proceedings is only appropriate in the clearest of cases. There will generally be two categories of cases where a stay is required: the “main” category where state conduct has compromised trial fairness; and a “residual” category where trial fairness is not threatened but “the state conduct risks undermining the integrity of the judicial process”: R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16, at para. 31. This case falls into the residual category.

[48] In Babos, supra, the Supreme Court set out a three-part test to determine whether a stay of proceedings is appropriate in the residual category of cases at para. 32:

i) The continuation of the prosecution or the outcome must prejudice the integrity of the justice system; ii) There must be no alternative remedy capable of redressing the prejudice; and, iii) If uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interest in maintaining the integrity of the justice system against the interest in a determination of the case on its merits.

[49] The court gave further guidance on the first branch of the test at para. 35:

[W]hen the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial -- even a fair one -- will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[50] In my view, the first branch of the test is met in Mr. Hicks’ case. The conduct of the police here was beyond what is acceptable in the prosecution of cases, even ones as serious as drinking and driving offences, which remain a plague on the community.

[51] I am also satisfied that no lesser remedy is capable of redressing the prejudice. These are summary conviction offences where fines and concurrent driving prohibitions would otherwise be imposed. A sentence reduction, in my view, would be an inadequate response. It is necessary in these circumstances for the court to disassociate entirely itself from this offensive state conduct. A stay of proceedings is the only remedy capable of achieving this goal.

Conclusion

[52] Mr. Hicks is found not guilty on both counts for the above reasons. If I am wrong in these findings, I would have entered a stay of proceedings pursuant to s.24(1) of the Charter as a remedy for the infringement of his right to be secure from unreasonable search and seizure.

[53] Mr. Hicks was also charged with provincial offences for having alcohol readily accessible while operating a vehicle, and failing to surrender a driver’s licence. He admitted in his trial testimony that he had a can containing vodka and ginger ale in the centre console while driving. PC Darling testified that he requested a driver’s licence from Mr. Hicks, but that he did not produce one. Both charges are proven, but I am entering stays of proceedings based on the s.8 Charter infringement I have detailed above.

Released: February 8, 2023 Signed: “Justice S.W. Konyer”