ONTARIO COURT OF JUSTICE
DATE: April 4, 2024
COURT FILE No.: Toronto 21-75005099 21-75060170
BETWEEN:
HIS MAJESTY THE KING
— AND —
MATTHEW MCNAIR
Before Justice Hafeez S. Amarshi
Written reasons released on April 4, 2024
Counsel: D. Hogan, counsel for the Crown L. Shafran, counsel for Matthew McNair
H.S. Amarshi J.:
A. Introduction
Matthew McNair was handcuffed by police before being arrested for refusing to provide a breath sample. The defendant was stopped by police for driving erratically. He was belligerent and argumentative. He acted oddly.
Although detained, police did not immediately provide a right to counsel caution. Neither did they provide a breath demand despite having a reasonable suspicion that Mr. McNair had consumed alcohol prior to driving.
The defence seeks to exclude evidence of the refusal at the roadside arguing Mr. McNair’s sections 8, 9 and 10 (b) Charter rights were violated. Further, the defence argues that the investigating officers failed to satisfy the forthwith or immediacy requirement for a roadside breath demand, and as a consequence did not adhere to the requirements of s. 320.27(1), rendering the demand unlawful.
The Crown counters that Mr. McNair’s actions that early morning gave rise to safety concerns and that the police acted reasonably in the circumstances.
The Crown proceeded summarily and called two investigating police officers. The Crown adduced body worn and in-car camera video of the incident. The defendant did not testify.
Mr. McNair was charged contrary to s. 320.15(1) of the Criminal Code, he did knowing that a demand had been made, fail or refused to comply with the demand made by a police officer.
It is not disputed that the defendant refused to provide a sample into an approved screening device (ASD) while lodged in the backseat of a police vehicle.
Further, he was charged with failing to comply with a condition of his release order contrary to s. 145 (5)(a) of the Criminal Code. It is not disputed that despite being bound by a curfew condition that he remain in his residence between the hours of 8 p.m. and 6 a.m. the defendant was driving his vehicle on October 28, 2021, just after 2 a.m.
Mr. McNair was also charged with a number of Highway Traffic Act (HTA) offences, including driving without proper lights, disobey stop sign, driving while under suspension contrary to sections 62 (1), 136 (1)(a), and 53 (1) of the HTA.
He is further charged with operating a vehicle without insurance, contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act. At the end of the trial, the Crown reasonably conceded there was insufficient evidence to support the non-insurance count.
B. Relevant evidence
Observations of driving
Police Constable Laura MacKasey has been a police officer for six years. On October 28, 2021, while responding to a radio call she observed a vehicle that she says was driving quickly and erratically. It was 2:12 a.m. She further observed the car to be driving without any headlights turned on.
It is not disputed that the driver of that vehicle was Matthew McNair.
She and her partner P.C. Steevens Audig, who at the time of the incident, had been an officer for just over a year decided to investigate the driver.
They followed the car on Eglinton Ave, heading east, and observed the vehicle to cross two lanes of traffic before turning right on Rumsey Road, into a residential neighbourhood. At the first stop sign at Parklea Drive the vehicle turned right. It does not stop.
Officer Audig, who was driving, activated the emergency lights on the police vehicle. The car comes to a stop at the next intersection at Parklea Drive and Hanna Road. The car initially stopped but then moved slightly forward before stopping again.
Officer MacKasey concluded given the manner of driving the defendant was trying to evade police.
Actions at the roadside
The officer queried the licence plate on the onboard computer. She read a notation related to firearms, likely a weapons prohibition. P.C. MacKasey admits that she was quickly scrolling through the information and she did not have an opportunity to fully review the returns of the query. She agreed that the weapons prohibition could have been a dated entry.
Mr. McNair emerged from his SUV, this despite P.C. Audig repeatedly asking the defendant to stay in the vehicle. Officer Audig described it as a “big safety concern.” P.C. MacKasey was concerned because it was clear to her that the defendant was ignoring police demands. She described traffic stops as being “inherently dangerous.”
Eventually, Mr. McNair returned to his vehicle, but then stuck his hands outside the window. The defendant again exited the vehicle telling the officers he would walk backwards towards them. He kept saying, “You know who I am.” He placed his hands behind his back.
At this point Office Audig said his safety concerns were “very elevated.” That the defendant was acting like he was being subjected to a gunpoint arrest which was not the case. His actions were unprompted by police.
P.C. MacKasey notified police dispatch of the traffic stop. She was concerned that Mr. McNair had committed a criminal offence because of the way he was acting and that he was expecting police to arrest him.
The defendant was handcuffed within moments of emerging from his vehicle – an Acura SUV.
Officer MacKasey agreed he was detained at this point, but neither officer gave Mr. McNair a right to counsel caution. The officer explained that she had safety concerns and was trying to figure out what was causing the defendant’s behaviour.
P.C. Audig similarly testified that the defendant was handcuffed for “everyone’s safety,” and that Mr. McNair was not listening to police commands and that they were attempting to calm the situation down.
Officer MacKasey asked the defendant if he had been drinking. He admits to having consumed two beers. She calls dispatch to have an ASD brought to the roadside.
P.C. MacKasey testified that she detected signs of impairment. She agreed that she needed to make a formal breath demand but explained that it was not safe to do so. She described the situation as being very fluid.
Officer Audig also agreed that once the defendant admitted to consuming alcohol there was a reasonable suspicion to support a breath demand, but that his primary concern was to establish what was prompting the defendant’s erratic behaviour.
Officer MacKasey asked the defendant to identify himself. He responds, “the second you see that you are not going to talk to me again.” This led the officer to think that Mr. McNair may have harmed someone.
The defendant proceeded to explain that he had lost his cell phone containing his daughter’s photos. He expressed concern over his personal belongings in his vehicle. Prompted again by P.C. MacKasey, Mr. McNair verbally identifies himself.
Officer Audig proceeds to conduct a patdown search of the defendant just outside his police vehicle. He retrieved a lighter. In Mr. McNair’s left back pocket is a clearly visible wallet, which the officer also retrieved.
At the tail end of the pat down search Officer MacKasey tells the defendant he is being “investigatively detained.”
Officer Audig places the defendant in the backseat of his police vehicle. He testified that Mr. McNair was tensing up and trying to squirm out of his handcuffs.
Arrest
Using a health card, which was retrieved from the defendant’s wallet, Officer MacKasey is able to confirm his identification. She determined the defendant was subject to a curfew. She tells Mr. McNair he is under arrest but does not give the defendant a right to counsel caution. P.C. Audig subsequently provides a caution.
An ASD arrives at the scene and Officer MacKasey reads a demand for an approved screening device. Mr. McNair clearly refuses. He is belligerent. He is subsequently arrested.
The defendant is transported to a police division. It is determined that Mr. McNair’s vehicle will be towed. One of the officers that belatedly arrives on the scene, conducts what is described as an “inventory search.” They locate the defendant’s cell phone.
Mr. McNair is transported to a police division. According to Officer MacKasey, the defendant was aggressive during transport. Further restraints had to be used at the division.
C. Legal Principles & Analysis
The defendant was arbitrarily detained
The defence argues that that there were no reasonable grounds to suspect the Applicant was involved in a recent or ongoing offence. That at its highest, the situation gave rise to a HTA investigation that did not require the defendant to be detained. Further, even if there were officer safety concerns, the detention should have been brief until those concerns were alleviated.
The Crown counters that the situation at the roadside unfolded quickly and unpredictably. That the manner of the defendant’s driving, his odd behavior upon exiting his car, and his reluctance to follow police commands posed a danger to police. Further, his utterances about his daughter, placed in this broader context, support a reasonably based suspicion that Mr. McNair may have been involved in a recent criminal offence justifying an investigative detention.
Section 9 of the Charter provides that “[e]veryone ha the right not to be arbitrarily detained or imprisoned.”
The Supreme Court has adopted a generous and purpose interpretation of s. 9, one that seeks to balance society’s interest in effective policing with robust protection for individual rights.” See discussion in R. v. Thompson, 2020 ONCA 264, at para. 29.
As the Supreme Court stated in R. v. Mann, 2004 SCC 52, officers may detain individuals for investigative purposes if,
(1) There are reasonable grounds to suspect, in all the circumstances, the individual is connected to a recent or ongoing criminal offence; and
(2) The detention is reasonably necessary on an objective view of the totality of the circumstances.
For such a detention to be lawful the detention must be viewed as being reasonably necessary based on an objective view of the totality of the circumstances, informing the officer’s suspicious that there exists a clear nexus between the individual and a recent or ongoing criminal offence. R. v. Mann, 2004 SCC 52, at para 34.
Officer MacKasey testified that when she asked Mr. McNair to identify himself, he responds, “The second you see that you are not going to talk to me again.” Earlier the defendant was emotional when talking about his daughter. This utterance along with Mr. McNair’s erratic behaviour led the officer to believe that he done something to harm the child’s mother. In her words that Mr. McNair had “done something egregious.”
Officer Audig testified his primary concern when he detained the defendant was to establish what was prompting the defendant’s erratic behaviour. That he was trying to establish what “we are dealing with.”
Neither justification supports a lawful detention. There is no clear nexus between a recent and ongoing criminal offence. The investigative detention power is meant to permit police to hold a suspect in the immediate aftermath of a crime, or while a crime is ongoing. Officer MacKasey’s justification for detention is slightly more compelling than her escort officer, but in essence it is nothing more than a hunch. The officers had no meaningful information about a crime being committed.
The ambiguous nature of the investigation is revealed in P.C. MacKasey’s comments captured on her body worn camera when she tells the defendant, “Right now you are in handcuffs because we have no idea who you are and what you are doing.”
I note the extent of the defendant’s utterances about his daughter relate to his concern that he had misplaced his phone which contained her photos. It is difficult to discern the safety concerns about the child or her mother that flow from this exchange.
I appreciate that the defendant’s erratic behaviour was concerning, he was at times calm and lucid at other moments highly emotional and angry, however his emotional state combined with his roadside utterances are thin justification to support an investigative detention. There is no “constellation of objectively discernable facts” that can support Officer MacKasey’s subjective view of criminal activity. See discussion of the reasonable suspicion standard in R. v. Simpson, (1993), 12 O.R. (3d) 182.
A detention without reasonable suspicion is unlawful and therefore arbitrary.
Dual purpose
I readily agree that given Mr. McNair’s driving, there were valid grounds for a detention under the HTA. However, it is clear from the investigating officer’s evidence that they had commenced a criminal investigation almost immediately.
Investigative detention that includes a dual purpose is not arbitrary, however the level of intrusion in this case far exceeds what would be required during a traffic stop and renders it unlawful. Mr. McNair is handcuffed within moments of exiting his vehicle. He is searched and placed into a police vehicle prior to an arrest. It is the nature of the detention that subverts the lawful use of police powers in this case.
Consideration of safety concerns
The Crown argues that Mr. McNair was aggressive, confrontational and non-complainant from the outset of his interaction with police. That the police had genuine safety concerns. He concedes the actions of the officers, although not perfect, were reasonably responsive to the situation presented to them in the context of the defendant’s erratic behavior.
Mr. Hogan makes a compelling argument. I note as the defendant exited the car, he proceeded to walk backwards without being prompted and placed his hand behind his back. He kept saying, “You know who I am.” At this point Officer Audig said his safety concerns were elevated. That the defendant was acting like he was being subjected to a gunpoint arrest.
Police work is dangerous. The situation at the roadside was fluid and unpredictable. Police had little information about the defendant. P.C. MacKasey had briefly reviewed an entry related to a firearm. I am mindful of Doherty J.A. comments in R. v. Golub, (1997), 102 O.A.C. 176 (CA),
...one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised. The frustration of the effective enforcement of the criminal law is the hallmark of the exceptional circumstances identified in Feeney. [citations omitted]
Although I have concerns about the initial decision by police to handcuff Mr. McNair within moments of the traffic stop, I appreciate the police were required to make rapid assessments in a potentially volatile circumstance.
However, the difficulty in this case is that even if I accept police acted reasonably in handcuffing the defendant at the outset of the roadside interaction, the defendant remained in handcuffs longer than was reasonably necessary.
Upon review of the body worn and in-car camera videos there are instances when Mr. McNair is calm and cooperative. He is responsive to police commands. For example, there is a period of time, moments after he is handcuffed that P.C. MacKasey asks if he had been drinking, he explains he had a beer or two and went to get pizza to sober up. He explains that he misplaced his phone. He then asks the officer, “Can I have a cigarette please?” He further asks the officers to explain where his personal belongings in his car will go.
It is unclear why Mr. McNair’s continued physical detention was required in the face of this exchange.
When the police interaction is reviewed as a whole, I have concerns about the need for ongoing physical restraints.
The decision to handcuff Mr. McNair prior to arrest is a significant intrusion on the defendant’s liberty interests. It is exacerbated by the fact that police lacked lawful authority for the detention in the first instance. The police at the scene were obligated once safety concerns were mitigated to re-assess whether continued handcuffing was required given the change of circumstances.
As Nakatsuru J. (as he then was) commented in R. v. Campbell, 2016 ONCJ 236, at para. 124, “Handcuffing a detainee is a red flag that the power of investigative detention may have exceeded its proper limits.”
Even if I were to accept handcuffing Mr. McNair was initially justifiable for officer safety, it did not remain the case throughout the course of his detention and it was therefore unlawful.
I find it particularly concerning that although Officer MacKasey testified that she had concerns that the defendant had harmed someone, no further inquiries were made to confirm that suspicion and the investigation quickly morphs into an impaired investigation.
I have concluded one of the principal reasons for the defendant’s continued physical restraint at the roadside, longer than reasonably necessary, was to facilitate a breath test.
Indeed, the nature of the detention became more evasive as officers commenced a patdown search with little explanation. As the search is concluding P.C. MacKasey belatedly advised the defendant he is being investigatively detained.
Mr. McNair becomes more aggressive as the detention continues, especially after he is forcibly placed into the back of a police vehicle.
The defendant’s s. 10 (a) and s. 10 (b) rights were violated
Although Mr. McNair was handcuffed within moments of emerging from his vehicle and clearly detained, he was not provided a right to counsel caution for approximately 12 minutes, when he was lodged in the back seat of the police vehicle. Further, there was delay in informing the defendant the reason for his detention.
The Crown argues given Mr. McNair erratic behaviour which gave rise to officer safety concerns the delay in the provision of a counsel caution was reasonably justified in the circumstances.
Sections 10 (a) and 10 (b) of the Charter provide that, “Everyone has the right on arrest or detention to be informed promptly of the reasons and to retain and instruct counsel without delay and to be informed of that right.”
Promptly has been interpreted to mean “immediately.” Police must immediately inform a detainee in clear and simple language of the reasons for their arrest and or detention. R. v. Nguyen, 2008 ONCA 49 at para. 20.
The Supreme Court in R. v. Black, [1989] 2 SCR 138, at para. 24 emphasized the correlation between sections 10(a) and (b) of the Charter, stating:
Moreover, s.10(b) should not be read in isolation. Its ambit must be considered in light of s.10(a). Section 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s.10(b) arise because he or she has been arrested or detained for a particular reason. An individual can only exercise his s.10(b) right in a meaningful way if he knows the extent of his jeopardy.
In R. v. Suberu, 2009 SCC 33, the Supreme Court confirmed that police must comply with s.10(b) immediately upon detention. There may be occasions when it is necessary for police to delay the caution. However, any such delay must be based on specific pressing circumstances, for example, addressing police or public safety.
While I accept it was initially reasonable in this case to delay a s.10 (b) caution, it was no longer justifiable once police maintained control over the defendant and were able to engage with him. As previously discussed under the s.9 analysis, there was a period shortly after Mr. McNair was handcuffed when he was responsive to police questioning. The delay was unreasonable in the circumstances.
Indeed, I have concluded there were multiple opportunities in addition to the period shortly after detention for Officers MacKasey and Audig to provide a s.10 (b) instruction. Almost six minutes after the defendant is handcuffed, Officer MacKasey, as observed on the body worn footage, belatedly explains to Mr. McNair, “Right now you are being investigatively detained to find out what is going on and you are having a patdown search for your safety and mine.”
This was an opportunity to provide a caution. The defendant had just been searched and his wallet extracted. No weapons had been located. The police were in firm control of Mr. McNair. P.C. MacKasey had turned her mind to the fact that some explanation was required for the detention but decides to hold off on a right to counsel instruction. I further note the officer’s explanation for the investigative detention was so sparce that it was rendered meaningless.
One to the main reasons I have concluded for the delayed caution was that Officer MacKasey did not have ready access to her memobook. Citing safety concerns, she testified that she needed a safe spot to pull out her notebook to provide a right to counsel caution.
She conceded in cross-examination that she could have explained the caution, as she testified, “Not verbatim from the book or at least explain that and at the time [my] focus was on safety.”
The standard s.10 (b) instruction requires no expert language, nor enhanced legal knowledge – it is simply a requirement that the police advise a detainee that he or she can call any lawyer they wish and be made aware of the availability of legal aid and free duty counsel. Although a memobook caution is a helpful guide, the basic s.10 (b) instruction can be provided at the roadside, without the need of an aid and usually with little difficulty by trained police officers.
To be clear, I did not accept Officer MacKasey explanation that safety concerns prevented her from providing a right to counsel caution.
At 2:25 a.m. Mr. McNair was arrested in the backseat of a police vehicle for failing to comply with a curfew condition of his recognizance, almost ten minutes after he is first handcuffed. Again, P.C. MacKasey neglects to provide a caution. She explained in cross-examination, “That was a human error on my part that I was fortunate my partner caught right very quickly after and read the rights to counsel.”
If pressing safety concerns exist, the police can suspend a s.10 (b) caution, but only for so long as is reasonably necessary. As the court explained in R. v. Mazza, 2016 ONSC 5581, at para. 83, once the decision has been made to suspend the right to counsel, the police must continuously review the basis for the suspension. A decision to suspend rights that is initially justifiable may no longer be reasonable when circumstances change.
I have concluded Mr. McNair’s s.10 (a) and 10 (b) rights were violated. The police had meaningful opportunities to provide a counsel caution at various points during his detention. The police failed to ensure the caution was delayed only as was required in the circumstances. Further, the investigating officers failed to promptly provide reasons to the defendant for his detention. Once provided, they were unclear and vague.
D. Section 24 (2) of the Charter
Can evidence of a refusal to provide a breath sample at the roadside be excluded under s. 24(2)?
One of the main issues in this case relates to the applicable remedy. The Crown argues that Mr. McNair’s refusal to comply with the approved instrument demand is the actus reus of the offence and cannot be subject to exclusion under s. 24(2).
Somewhat surprisingly there is no consensus on this issue, especially as it relates to the act of refusing a breath sample at the roadside. Indeed, in R. v. Odemi, 2022 ONSC 2292, Barnes J. after reviewing multiple authorities concludes that appellate clarification is warranted. Justice Barnes ultimately agrees with the reasoning supporting the principle that evidence of a breath refusal can be excluded.
In R. v. Hanneson (1989), 34 O.A.C. 352, and R. v. Ha, 2010 ONCA 433, the Ontario Court of Appeal held that the actus reus of an offence cannot be excluded due to a Charter breach. However, in R. v. Van Deelen, 2009 ONCA 53, the Court of Appeal in brief reasons stated that, “Violation of s.10(b) may or may not result in exclusion of the evidence of the refusal under s. 24(2)” – suggesting an ASD refusal can be excluded from evidence.
Similarly in R. v. Soomal, 2014 ONCJ 220, the court was faced with a similar argument – that the holding in Hanneson was determinative, that the defendant’s refusal to provide a breath sample at the police division could not be excluded from evidence. Stribopoulos J (as he then was) concluded at para. 77:
I do not believe the Court of Appeal in Hanneson intended for its decision to be determinative in a case like this one, where the violation of a Charter right precedes the refusal to provide a breath sample in response to a demand under subsection 254(3)(a) (i.e. an approved instrument demand). I come to this conclusion for two reasons: first, the Court did not include the refusal to provide a breath sample in the list of offences it enumerated to illustrate the principle it recognized; and second, the circumstances contemplated by the Court of Appeal are distinguishable from a case like this one, where a defendant could potentially have a reasonable excuse for not providing a breath sample. As a result, I have concluded that the holding in Hanneson does not reach the circumstances of this particular case.
Justice Stribopoulos concedes there is a fair amount of uncertainty surrounding the impact of Hanneson on the current state of the law.
Indeed, the courts in R. v. Sidhu, 2013 ONCJ 131 and R. v. Muir, 2013 ONCJ 249, concluded that the holding in Hanneson is decisive, where a constitutional violation is established the refusal to provide a breath sample cannot be considered for exclusion under s. 24 (2).
More recently in R. v. O’Shea, 2019 ONSC 1514, the court came to a different conclusion. Schreck J. after considering the analysis in Soomal determined that s. 24 (2) can properly be used to exclude evidence of a refusal to provide a breath sample. See also R. v. Doobay, 2019 ONSC 7272.
Significantly, the case at hand does not involve breaches related to the standard roadside suspension of s. 10 (b) rights and justified under s. 1 of the Charter but involves multiple breaches of the defendant’s Charter rights. The police actions involved a significant deprivation of Mr. McNair’s constitutional rights at the roadside.
Since the release of Hanneson in 1989 the courts have clarified the “obtained in a manner” threshold on multiple occasions. See for example R. v. Wittwer, 2008 SCC 33, at para. 21 and R. v. Mack, 2014 SCC 58, at para. 38.
Most recently in R. v. Tim, 2022 SCC 12, the Supreme Court stated that the courts are to take "a purposive and generous approach" to whether evidence was "obtained in a manner" that breached an accused's Charter rights. The "entire chain of events" involving the Charter breach and the impugned evidence should be examined and evidence will be tainted if the breach and the discovery are part of the same transaction or course of conduct. The connection between the Charter breach and the impugned evidence can be temporal, contextual, causal, or a combination of the three. R. v. Tim, 2022 SCC 12, at para. 78. See also R. v. Pino, 2016 ONCA 389.
Under the purposive analysis, trial courts are instructed to give generous interpretation aimed at fulfilling the purpose of the Charter rights at issue. Although the Supreme Court has cautioned this does not necessarily equate to the most generous interpretation that their language will allow. As the court emphasized in R. v. Poulin, 2019 SCC 47, at para. 54, Charter rights, “must be interpreted liberally within the limits that their purposes allow.” Relevant to this analysis is a determination of the appropriate balance to be struck between individual rights and societal interests.
I am satisfied that evidence of the refusal was obtained as a result of breaches of Mr. McNair’s Charter rights.
It strikes me as antithetical to the purposes and principles underlying the Charter that there would be no tangible consequences for the police conduct in this case. The Charter has provided a framework for establishing clear boundaries on the exercise police powers, significantly when those powers are exercised at the roadside in the aftermath of a vehicle stop.
The police actions in this case involved serious violations of Mr. McNair’s constitutional rights. The absence of a meaningful remedy would render those rights hollow.
The refusal takes place in the back of a police vehicle 14 minutes after the defendant was unlawfully detained. The evidence of the refusal is temporarily and contextually connected to the ss. 9 and 10 (a)(b) violations. The constitutional breaches are intrinsically connected to the entirety of the transaction between Mr. McNair and police at the roadside.
E. Grant Analysis
- The test for the exclusion of evidence was outlined by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and comprises a three-part test. In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors are to be considered:
(1) The seriousness of the Charter- infringing state conduct;
(2) The impact of the breach on the Charter -protected interests of the accused; and
(3) Society's interest in the adjudication of the case on its merits.
As the Court of Appeal recently commented in R. v. Whittaker, 2024 ONCA 182, s. 24(2) is not an automatic exclusionary rule that requires the exclusion of evidence when police act in an unconstitutional manner. The question is whether the admission of the evidence would bring the administration of justice into disrepute.
The objective, the Court explains is, “Not to assign blame, punish the police, or deter future Charter breaches, but to “preserve public confidence in the rule of law and its processes”. A s. 24(2) analysis must focus on the “broad impact [the] admission of the evidence [would have] on the long-term repute of the justice system.” R. v. Whittaker, 2024 ONCA 182, at paras. 28 and 29.
The seriousness of the Charter-infringing state conduct
In assessing this factor, Charter infringements can range in seriousness on a "spectrum from mere technical breaches at one end to bad faith violations at the other." R. v. Jennings, 2018 ONCA 260, at para. 26. A blatant or willful disregard of the defendant’s Charter rights by the police will make the conduct more serious.
In this case the breach of the defendant’s s. 9 and 10 (a)(b) rights falls at the serious end of the spectrum.
I did not conclude that the officers at the roadside intentionally set out to violate Mr. McNair’s Charter rights, but ignorance of Charter standards aggravates the nature of the breach.
This is not a case where the law is either unsettled or unclear. The provision of a right to counsel instruction is to be complied “without delay” at the roadside upon detention or arrest. The officers at the roadside had a reasonable opportunity to comply with this constitutional requirement. Although there were officer safety concerns during this roadside stop, they were effectively mitigated by the officers during their interaction with the defendant. Of particular concern, I have concluded that one of the principal reasons Officer MacKasey delayed the right to counsel caution was that the officer did not have ready access to her memobook – a rationale that can hardly justify a breach of Mr. McNair s.10 (b) rights. I did not accept that the safety concerns in this case acted as a sweeping exclusion of the defendant’s basic constitutional rights.
Further, the officers never articulate a reason for detention in violation of the defendant’s s.10 (a) rights, likely because they were unsure themselves.
The s. 9 breaches in this case are two-fold – first, police detained Mr. McNair without the requisite legal grounds. There was no clear nexus between a recent and ongoing criminal offence to support a lawful detention. The police “are rightly expected to know what the law is.” R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 133. The actions of Officers MacKasey and Audige demonstrate a lack of understanding of basic Charter standards.
Second, the defendant remained in handcuffs longer than was reasonably necessary. The prolonged physical restraint of Mr. McNair was unlawful.
This branch of the Grant analysis favours exclusion.
The impact of the breach on the Charter-protected interests of the accused
At the second stage of the Grant analysis, a court must assess the seriousness of the infringement from the perspective of the defendant. The analysis calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the incursion, the greater the risk that the admission of the evidence will bring the administration of justice into disrepute. R. v. Grant, 2009 SCC 32, at para. 76; see also R. v. Le, 2019 SCC 34, at para. 151; R. v. Harrison, 2009 SCC 34, at para. 28. This is because as the Supreme Court stated in Grant the “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”
The breach of Mr. McNair’s s.10 (b) rights at the roadside was serious. It demonstrated carelessness on the part of the investigating officers. In R. v. Rover, 2018 ONCA 745, Doherty J.A. described the right to counsel as “a lifeline for detained persons” and further, “the psychological value of access to counsel without delay should not be underestimated.”
This breach alone in my view favours the exclusion of evidence. The circumstances are further aggravated by the s. 9 breach. Mr. McNair is handcuffed within moments of his interaction with police. The officers lacked lawful grounds. The use of handcuffs represents a significant form of state compulsion, especially in circumstances prior to arrest. It escalates the incursion on an accused’s liberty rights. See discussion in R. v. Virk, 2018 ONCJ 752, at para 56.
The police actions in this case had a significant negative impact on the defendant’s Charter protected rights and strongly favours exclusion.
Society's interest in the adjudication of the case on its merits
The truth-seeking function of a trial is an important consideration. The third step of the Grant analysis favours admission in this case. However, as the Supreme Court explained in R. v. Beaver, 2022 SCC 54, at para. 134, where the first two Grant factors “make a strong case for exclusion” of the evidence, the third factor “will seldom tip the scale in favour of admissibility.”
This is not one of those rare cases where consideration of this factor outweighs the case for the exclusion of evidence.
The administration of justice is better served by excluding evidence of Mr. McNair’s breath refusal than by admitting it.
F. Section 8 rights
Although I also found Mr. McNair’s s. 8 rights were breached in this case, that finding did not play a significant role in the Grant analysis.
The defendant’s right against unreasonable search and seizure was violated when police searched him incident to an unlawful detention and prior to advising him of his detention and informing him of his right to counsel. No evidence was seized. If this was the sole Charter beach in this case, it is unlikely it would have led to the exclusion of the roadside breath refusal. Once police determined Mr. McNair was to be placed in the police vehicle, I accept it was prudent to conduct a patdown search for weapons and I accepted that was their main purpose.
G. HTA offences and failing to comply with a release order
The defence further seeks the exclusion of the evidence in support of the HTA offences before this court. Specifically, the observations of driving made by the officers prior to the stop of Mr. McNair’s vehicle. Further the defence seeks to exclude evidence that the defendant was outside of his home beyond the hours of his court-imposed curfew and therefore breaching the conditions of his recognizance.
I did not give effect to the defence argument. The breaches of the defendant’s ss. 8, 9, 10 (a)(b) rights occurred entirely after the commission of the HTA offences. Evidence required to prove the driving infractions had already been gathered on the police in-car camera by the time Mr. McNair was unlawfully detained.
While a causal connection between the breach and the evidence is not required, it remains a relevant consideration when determining if a sufficient connection exists.
The connection between the Charter breaches in this case and the HTA infractions sought to be excluded is too remote to be “obtained in a manner.”
The Crown has proven the HTA offences charges contained in the information. The in-car camera video clearly shows the defendant running a stop sign at the intersection at Rumsey Rd and Parklea Dr.
I accepted the officers’ evidence that the defendant’s front headlights were not illuminated. This conclusion is supported by the video evidence.
To be clear Mr. McNair was driving erratically. He completed a dangerous maneuver crossing two lanes of traffic on Eglinton Ave. before turning right on Rumsey Rd. The police were quite correct in initiating a traffic stop.
The same principle applies to the breach of the defendant’s release order. The commission of the offence was completed prior to his engagement with Officers MacKasey and Audige, when he was observed driving his vehicle just after 2 a.m. despite being bound by a condition of his release order that he remain in his residence between the hours of 8 p.m. and 6 a.m. The defence conceded Mr. McNair was bound by a release order at the time of his arrest.
I appreciate the officers were not able to firmly identify the defendant at the outset of the traffic stop, but eventually were able to confirm that he was bound by a court order. A driver has a basic obligation to establish they are licensed to drive. That evidence was discoverable. Prior to any interaction with the defendant, police already had basic information about Mr. McNair based on a query of the licence plate of the Acura SUV. Establishing identity is an element of any valid traffic stop. The causal connection between the subsequent Charter breaches is insufficient to support the exclusion of evidence related to the defendant’s breach of his curfew condition.
H. Lawfulness of the breath demand
Although I have concluded the evidence of the breath refusal must be excluded, the defence also argued that the immediacy requirement of s. 320.27 was not complied with and the subsequent breath demand by police was unlawful. There is merit to this argument.
In this case an ASD demand was made approximately 13 minutes after officers formed a reasonable suspicion to support a breath demand. The requisite legal grounds were formed within moments of Mr. McNair’s detention.
Section 320.27 of the Criminal Code authorizes a police officer to require a driver to provide a breath sample for testing on an approved screening device. Where the initial result shows an illegal blood alcohol level, those results can provide grounds for arrest and trigger a further demand for a breathalyzer test which is usually conducted at a police division.
To make a demand pursuant to s. 320.27, an officer must have reasonable suspicion that a person has alcohol in their body while operating or having care and control over a vehicle. The breath demand under this section must be made “immediately,” once the officer forms the requisite legal grounds. Section 320.27 replaces section 254 of the Criminal Code. The section replaces the word “forthwith” with “immediately.” The analysis does not change, and the words are meant to be read as having the same meaning. See R. v. Yamka, 2011 ONSC 405.
The immediacy requirement is a crucial component of the section because it justifies what would otherwise be sustained as violations of ss. 8, 9 and 10 (b), of the Charter. It is clear, as the Supreme Court explained R. v. Woods, 2005 SCC 42, at para. 15, that without the forthwith requirement the roadside screening demand provisions would not survive constitutional scrutiny. In other words, so long as the investigating officer satisfies the immediacy requirement of s. 320.27 then for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise a detainee of his or her right to counsel. R. v. Quansah, 2012 ONCA 123, at para. 22.
In cases involving an approved screening device, where the test can proceed forthwith the s.10 (b) Charter breach is a reasonable limit.
I note the immediacy requirement must take into account all of the circumstances and in unusual circumstances may justify a flexible interpretation of this requirement.
In this case the Crown asserts the pressing exigency was officer safety displacing the strict requirement for immediacy under s. 320.27.
I have concluded that Officer MacKasey’s reasonable suspicion crystallized at 2:15:25 a.m. when Mr. McNair admitted to consuming two beers. This admission came in response to the officer asking the defendant if he had been drinking. This occurred within one minute of the defendant being handcuffed. Less than a minute later at 2:16:20 PC MacKasey calls for an ASD to be brought to the scene.
A demand must be made by a police officer promptly once he or she forms a reasonable suspicion that the driver of a motor vehicle has alcohol in their body.
I am not satisfied that circumstances warranted the police delaying the breath demand.
Officer MacKasey turned her mind to the issue of impairment, was aware that she needed an ASD to be brought to the scene and contacted her dispatch yet delayed the breath demand until 2:28:25. I note when the defendant is initially handcuffed there was a period when Mr. McNair was responsive to police questioning and engaged with the officers. The officers were in full control of the defendant. Circumstances deteriorate significantly about seven minutes later when the officers first attempt to place the defendant in the backseat of a police car. He initially resists and becomes increasing belligerent and argumentative. By the time he is placed in the backseat of the police vehicle, it is clear that the defendant was not going to be cooperative. He clearly refuses to provide a breath sample after a demand.
In delaying the breath demand. The investigating officers were operating outside of the parameters of s. 320.27 and there was no suspension of the defendant’s Charter rights. The lawfulness of the ASD demand is an essential element of failing to provide a breath sample under s.320.15(1). As I have concluded that the demand was not lawful, the offence has not been established and there is no need to consider s. 24(2) of the Charter. Where an ASD demand does not comply with the requirements of s. 320.27, the person detained is not obliged to comply with it. No Charter issue arises nor is Charter relief necessary. See discussion in R. v. Gill, 2011 ONSC 4728, at paras. 39-41. In R. v. Grant, [1991] 3 S.C.R. 139, at 149, the Court held that where the demand is made outside the ambit of s. 254 (2) (predecessor of s. 320.27) the person to whom the demand is addressed is under no obligation to comply and does not commit an offence if they refuse to do so.
ASD was not readily available
In addition, an ASD was not at the scene when the police were in a position to make a breath demand.
The Supreme Court recently ruled on the issue of the absence of an ASD in R. v. Breault, 2023 SCC 9. The Court found that unusual circumstances may justify a flexible interpretation of the immediacy requirement. However, the absence of an ASD at the scene is not an unusual circumstance and therefore a demand made in the absence of an ASD is not presumed to be valid.
The burden of establishing the existence of unusual circumstances rests on the Crown and none are evident on the record before me.
I appreciate these charges pre-date the release of Breault, overruling the law as it was in Ontario, which is a relevant factor in the analysis. See R. v. Quansah, 2012 ONCA 123. However, given that I have already found the demand was unlawful, the application of the principles from Breault does not alter my conclusion.
I. Conclusion
In relation to the Criminal Code information – Mr. McNair is found guilty of count 1 – failing to comply with the curfew condition of his release order. Count 2 is dismissed – failing to comply with a roadside breath demand.
In relation to the HTA information, the defendant is found guilty of counts 1 and 2 – driving without proper lights and disobey stop sign. The defence conceded Mr. McNair was driving while under a licence suspension at the time of the police investigation and the defendant is found guilty of count 3.
The Crown invited count 4 be dismissed – operating a vehicle without insurance.
I want to thank both counsel for their fulsome and thoughtful submissions in this case.
H.S. Amarshi J.