Court File and Parties
COURT FILE NO.: 1091/15 DATE: 20160425
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – LARRY SIMPSON Appellant
Counsel: C. Sibian, for the Respondent S. Whitzman, for the Appellant
HEARD: April 18, 2016
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice J. Bovard, dated July 15, 2015]
RICCHETTI J.
THE APPEAL
[1] The Defendant appeals the conviction for the offence of Driving with Excess Alcohol by the Honourable Justice Bovard of the Ontario Court of Justice on July 15, 2015.
[2] The central issue before this court is whether the police officers had reasonable and probable grounds to arrest Mr. Simpson.
[3] Defence counsel also raises a second issue in his factum: the breach of Mr. Simpson's s. 11(b) Charter rights arising from the delay subsequent to the completion of the evidence in this case.
[4] Evidence was heard on March 11 and 14, 2014. After several adjournments for submissions and a reserve by the trial judge, on July 15, 2015, Mr. Simpson was found guilty of having excess alcohol in his blood.
BACKGROUND FACTS
[5] Mr. Simpson's vehicle was observed by another driver who suspected that Mr. Simpson's vehicle was being operated by an impaired driver. 911 was called. The police were dispatched.
[6] By the time the police arrived in the area, Mr. Simpson had arrived at home and was parked in his driveway. Mr. Simpson was retrieving items from his vehicle when Officer Freitas arrived.
[7] Officer Freitas made some observations at the scene: Mr. Simpson was unsteady on his feet and had a slight odour of alcohol. Officer Freitas asked Mr. Simpson if he had been drinking that evening. Mr. Simpson said no.
[8] Officer Leamon arrived a short time later. Officer Freitas told Officer Leamon of his observations and that Mr. Simpson was "arrestable" for impaired driving.
[9] Officer Leamon, relying on and believing what Officer Freitas had told him, arrested Mr. Simpson for impaired driving.
[10] There was concern by the officers that Mr. Simpson’s physical behaviour was due to medication he was taking for prostate cancer. After being arrested, Officer Leamon decided to administer an Approved Roadside Screening Device (ASD) demand to the Appellant. Officer Leamon testified that if Mr. Simpson passed the test, he would be released and that was the end of the matter. Officer Leamon also testified that, if Mr. Simpson failed, he would make a demand for a breath sample and take Mr. Simpson to the police station. Mr. Simpson failed the ASD.
[11] Officer Leamon took Mr. Simpson to the police station and a breath sample was taken by a certified analyst into an approved instrument. Mr. Simpson's blood alcohol concentration was found to be 160 and 150 milligrams of alcohol in 100 millilitres of blood.
[12] Mr. Simpson was charged with having excess alcohol in his blood.
THE FACTS CENTRAL TO THE APPEAL
[13] At trial, Officer Leamon agreed that, at the time he arrested Mr. Simpson, he did not have reasonable and probable grounds to arrest Mr. Simpson. Officer Leamon had relied on Officer Freitas' statements to him that Mr. Simpson was “arrestable”.
[14] While Mr. Simpson was under arrest, he complied with the demands of Officer Leamon for an ASD and later to provide a breath sample to an analyst at the police station.
[15] The significant portion of Officer Freitas' evidence was:
Q. Because at that point am I correct in saying that based on your observations, you had nothing like reasonable and probable grounds to affect an arrest, correct? A. I, I don't agree with that, no. Q. So, were you in a position to arrest Mr. Simpson then? A. I was. I was still investigating at the time. Q. You feel you're, you're in a position to arrest my client but you don't because you decide to have Officer Leamon affect the arrest, correct? A. At the time I was still building my grounds , yes. (emphasis added)
JUSTICE BOVARD'S DECISION
Reasonable Grounds for the Arrest
[16] On this issue, the learned trial judge wrote:
[76] Curiously, given all of these circumstances, when defence counsel asked Officer Freitas "you're in a position to arrest my client but you don't because you decide to have Officer Leamon affect(sic) the arrest, correct? Officer Freitas replied that "at the time I was still building my grounds." (emphasis added)
[77] No one asked Officer Freitas what he meant by this so the court is left to guess about it. Does it mean that he felt that he had to gather more objective grounds, or that he had yet to determine whether based on the objective grounds that he had he subjectively believed that he had reasonable grounds to arrest Mr. Simpson?
[78] The Supreme Court held that an officer "must subjectively have reasonable and probable grounds on which to base the arrest" and that those ground must also objectively constitute grounds for arrest.
[79] Objectively speaking, I find that Officer Freitas had sufficient grounds to satisfy the test in Storrey. However, the test requires that "an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest" and "Those grounds must, in addition, be justifiable from an objective point of view" (emphasis added).
[80] What happens if an officer who has sufficient objective grounds for an arrest but has not yet formed a subjective belief that he or she has sufficient grounds for the arrest directs another officer to arrest the person. Did that happen here? The evidence is not clear.
[81] If the second officer were to arrest a person in these circumstances the person would not suffer any prejudice because he or she was objectively speaking arrestable for the offence in spite of the first officer not realizing it.
[82] It seems to me that the test in Storrey is geared more towards safeguarding a citizen in the situation where an officer subjectively believes that he or she has sufficient grounds for arrest but the grounds are not objectively justified, rather than the situation where there are ample objective grounds to arrest, but the officer has not yet realized it. The reason is that in the latter situation the citizen is not prejudiced by being arrested.
[83] Was Officer Freitas’s evidence a mere unfortunate phrasing of his subjective mental state, or does it mean that, in spite of ample objective grounds for arresting Mr. Simpson he still did not subjectively believe that he had reasonable and probable grounds on which to base the arrest?
[84] Officer Leamon stated unequivocally that Officer Freitas told him that Mr. Simpson was “arrestable for impaired operation”. This contradicts Officer Freitas’s evidence that he was still building his grounds at this point. However, I do not doubt Officer Leamon’s testimony in this regard. It was not undermined in any way.
[85] Officer Leamon was entitled to rely on Officer Freitas’s directions and statement that Mr. Simpson was arrestable for impaired driving. In the circumstances of the case at bar, he cannot be faulted for having arrested Mr. Simpson.
[86] There is not sufficient evidence for me to be able to resolve the contradiction in Officer Freitas’s evidence. I did not know what he meant by his evidence.
[87] If I assume that he just gave sloppy evidence and that by saying that he told Officer Leamon that Mr. Simpson was arrestable he meant that he had formed the requisite subjective belief, then the arrest was lawful because I find that there were ample objective grounds to justify the arrest.
[88] If I assume that Officer Freitas did not have the subjective belief that Mr. Simpson was arrestable for impaired driving when he told Officer Leamon to arrest him, did he cause an illegal arrest by telling Officer Leamon that he was arrestable?
[89] Even if the latter is true, I find that Mr. Simpson’s arrest was legal because there were ample reasonable and probable grounds to arrest him for impaired driving. Officer Freitas’s lack of understanding cannot erase this. Moreover, Officer Leamon’s actions in arresting Mr. Simpson were legal.
[90] It cannot be that the test in Storrey means that in a situation where there are sufficient grounds for arrest if an officer does not realize it but notwithstanding this tells another officer to arrest the person, it is an illegal arrest. This would lead to the absurd result that the arrest of a person who is clearly arrestable for an offence would be illegal because the officer did not understand that he or she was legally entitled to arrest the person.
[91] I find that despite Officer Freitas’s contradictory evidence, “a reasonable person placed in the position of the officer [would] be able to conclude that there were indeed reasonable and probable grounds for the arrest”. Therefore, I conclude that Officer Leamon’s arrest of Mr. Simpson was lawful.
[92] If I am wrong that Mr. Simpson’s arrest was legal this means that the police breached his rights under s. 7 of the Charter, which states that “ Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. In addition, the subsequent gathering of Mr. Simpson’s breath samples would breach s. 8 of the Charter.
S. 24(2) Analysis
[17] The learned trial judge went on to consider, if he was wrong that there was no breach of Mr. Simpson’s Charter rights, whether the evidence should be excluded under s. 24(2) of the Charter. He stated:
Seriousness of the Charter Infringing State Conduct
[111] If the police breached Mr. Simpson's rights under ss. 7, 8 or 10(b), I find that they did not do so out of malice or inexcusable ignorance or with deliberate knowledge or carelessness. Even if it found that the arrest was illegal, the facts of the case indicate that this was not an easy decision to make and that much can be said in support of the arrest.
[113] Therefore, I find that the seriousness of any of these breaches is minimal. This militates in favour of the inclusion of the evidence.
Impact on the Charter Protected Interest of the Accused
[117] in considering all of the circumstances, I find that the degree of seriousness of the breach of any fo these rights on Mr. Simpson would be on the lower end of the scale. He was not detained for a long time, he did not suffer a difficult detention, the police were considerate to him, and the breath sample process is not a particularly intrusive one.
Society's Interest in an Adjudication on the Merits
[123] I find that in the case at bar the evidence in question is highly reliable and without it the Crown's case falls. Society's interest in "truth-finding" plays an important role in this case
[126] After considering all of the factors mentioned above, I find that if I am wrong about the police having breached Mr. Simpson's rights under ss. 7,8 and 10(b), the evidence should be admitted nevertheless.
POSITION OF THE PARTIES
[18] The Defence submits that the learned trial judge erred in law, when having found that he could not decide whether Officer Freitas had subjective grounds for the arrest, he found that the arrest was “legal”. As a result, the Defence submits that the learned trial judge failed to find that Mr. Simpson's s. 9 Charter rights were breached.
[19] The Defence submits that the ASD demand and subsequent evidence of the breathalyzer test, were demanded by the officers after Mr. Simpson had been arbitrarily and unlawfully under arrested, should be excluded under s. 24(2) of the Charter.
[20] The Crown quite fairly admits that "his Honour could not ascertain whether or not P.C. Freitas had a subjective belief at the time of advising P.C. Leamon that the appellant was arrestable..."
[21] However, the Crown submits that: a) Officer Leamon believed that Officer Freitas had reasonable and probable grounds for Mr. Simpson's arrest and, since he believed Officer Freitas was telling him the truth, he had both the necessary objective and subjective grounds to arrest Mr. Simpson; b) After arrest, after administering the ASD, Officer Leamon acquired reasonable and probable grounds to demand a breath sample. The Crown submits that Mr. Simpson could have been “re-arrested” at that time when Officer Leamon had formed his own reasonable and probable grounds to arrest Mr. Simpson.
THE LAW
[22] Sections 7 and 9 of the Charter provides:
- Everyone has the right not to be arbitrarily detained or imprisoned.
[23] Section 495 of the Criminal Code provides:
495 (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
The Law Applicable To a Warrantless Arrest
[24] In R. v. Amare, 2014 ONSC 4119, Justice C. Hill summarized a non-exhaustive list of considerations applicable to whether an arrest amounts to a breach of section 9 of the Charter: rights.
“83. In assessing whether the police breached s. 9 of the Charter in arresting a person, the following considerations apply: (1) an arbitrary arrest includes an unlawful arrest: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 55, 57 (2) an arrest will be unlawful, and arbitrary, if the arresting officer does not have reasonable and probable grounds to believe that the subject has committed, is committing, or is about to commit a criminal offence: Criminal Code, s. 495(1) (3) although it has been observed that “the onus is on the Crown to show that the objective facts” rise to the level supporting a lawful detention (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 45), it has generally been recognized that the onus is on the accused to demonstrate that his detention was unlawful: R. v. Nartey, 2013 ONCA 215, at para. 14 (4) not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-1 (5) in other words, the “reasonable grounds to believe” standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 117 (6) the fact “that an experienced Constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable”: R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158, at para. 19; Chehil, at para. 47 (7) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach-it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); Chehil, at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116 (8) that said, reasonable grounds is about “probabilities” (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 198, 213), nor at the low threshold of mere suspicion or possibility (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R 253, at para. 37; R. v. Baron, [1993] 2 S.C.R. 416, 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47 (9) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers “always be correct, but that they always be reasonable” United States v. Clutter, 674 F. 3d 980, 983 (8th Cir. 2012) (10) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013) (11) in assessing whether he or she has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203 – the officer is not required “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: Chehil, at paras. 34, 67 (12) an officer’s training and experience may provide “an objective experiential … basis” for grounds of belief: Chehil, at para. 47; MacKenzie, at paras. 62-4, 73 (13) a court reviewing the existence of reasonable grounds concerns itself “only with the circumstances known to the officers ”: R. v. Wong, 2011 BCCA 13, at para. 19 (leave to appeal denied [2011] S.C.C.A. No. 90 (emphasis in original) (14) provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds: Debot (S.C.C.), at pp. 206, 214.”
The applicable standard of review
[25] A trial judge's determination as to whether the police had reasonable and probable grounds to effect an arrest is one of correctness. The Supreme Court stated in R. v. Shephard, 2009 SCC 35:
[20] While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness. (emphasis added)
ANALYSIS
Was There a Breach of Mr. Simpson's Charter Rights?
[26] It is clear from the evidence that, at the time of the arrest, Officer Leamon had neither the subjective belief nor objectively reasonable grounds to arrest Mr. Simpson. He arrested Mr. Simpson at the direction of Officer Freitas that Mr. Simpson was "arrestable". Any grounds which Officer Leamon subsequently acquired were after the arrest of Mr. Simpson and do not turn an otherwise unlawful arrest into a lawful arrest.
[27] The learned trial judge's finding that he could not determine whether Officer Freitas had subjective grounds for arrest is entitled to deference. As stated above, the Crown concedes this issue.
[28] The real issue is whether, as a result of that finding of fact, the arrest of Mr. Simpson was lawful.
[29] If Officer Freitas did not have a subjective belief he had reasonable grounds to arrest Mr. Simpson, Officer Leamon could not have and did not have the subjective grounds to arrest Mr. Simpson. In R. v. Debot, [1989] 2 S.C.R. 1140, the Supreme Court stated:
The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so. Of course, this does not prove that reasonable grounds actually existed. It does make clear, however, that the pertinent question is whether Sergeant Briscoe and not Officer Birs had reasonable and probable grounds. Regrettably and inexplicably, Sergeant Briscoe did not testify at the appellant's trial. The record only indicates what he was told by others who did testify. We are left in the unsatisfactory position of having to construct the grounds on which Sergeant Briscoe made his decision from the testimony of those who supplied him with the relevant information. (emphasis added)
[30] In R. v. Feeney, [1997] 2 S.C.R. 13, the Supreme Court dealt with the situation where the arresting officer did not have subjective grounds to make the arrest. The Supreme Court stated:
In my view, as the lack of subjective belief on the part of the officer would suggest, the requirement that, objectively speaking, reasonable and probable grounds for an arrest exist prior to forcible entry is not met. The objective test as set out in Storrey, supra, is whether a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds to make the arrest existed. Any finding that the subjective test is not met will generally imply that the objective test is not met, unless the officer is to be considered to have an unreasonably high standard.
In any event, in my view the objective test was not met regardless of the officer’s views. An arrest cannot be made solely for the purpose of investigation, but if grounds exist on a subjective and objective basis, the fact that police intend to continue the investigation and do so does not invalidate the arrest: see Storrey, supra. A lawful arrest may be made that allows the police to continue their investigation, such as in Storrey where the police arrested a suspect in order to place him in a police line-up to be identified or not, but it is a fundamental pre-requisite that the police have reasonable grounds to arrest prior to arrest, whether or not the investigation is ongoing, particularly where an arrest is made without the safeguards to the citizen resulting from the warrant process. As Cory J. stated in Storrey, at p. 249:
Section 450(1) [s. 495(1)] makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. [Emphasis added.]
- It is questionable whether the police met the announcement requirement prior to forcibly entering the trailer to make a warrantless arrest. This issue does not need to be settled, in my view, since the requirement that the officer must believe he has reasonable grounds to arrest before forcibly entering private premises was not met. The failure to meet this subjective test is sufficient to render the arrest unlawful. However, even if the subjective test were met, objectively reasonable and probable grounds for the arrest did not exist prior to the forced entry into the trailer. Thus, the arrest was unlawful and could not support the entry into the appellant’s dwelling irrespective of the effect of the Charter on the right to enter dwellings for the purpose of arrest. In any event, even if the police met the standards of Landry and the other cases, a warrantless arrest in the circumstances of the case at bar following a forcible entry is no longer lawful in light of the Charter; I turn to this issue now. (emphasis added)
[31] I conclude that the arrest of Mr. Simpson was unlawful.
[32] I reject the Crown's submission that, because Officer Leamon believed Officer Freitas was telling him the truth that Mr. Simpson was "arrestable", that Officer Leamon had both subjective and objective grounds to arrest Mr. Simpson. This is contrary to the Supreme Court’s statement in Debot that, where the arresting officer carries out an arrest at the behest of another officer, the arresting officer's grounds to arrest are only as good as the officer who directed him to arrest the accused. Since Officer Freitas had no subjective grounds to arrest Mr. Simpson, the arrest was arbitrary and unlawful.
[33] I also reject the Crown's submission that Officer Leamon subsequently formed his own reasonable grounds for arrest after the ASD was administered. The difficulty with this submission is that the ASD occurred after Mr. Simpson had been arrested. To permit officers to obtain reasonable grounds for the arrest after the arrest would defeat the requirement that the police require reasonable and probable grounds before they arrest an accused.
[34] Mr. Simpson's s. 9 Charter rights were violated. As a result, Mr. Simpson’s s. 8 Charter rights were breached when he was required to provide a sample for the ASD and subsequently at the police station to the breathalyser analyst.
Should the Breath Samples be Excluded Under S. 24(2) of the Charter?
[35] The framework for the application of s. 24(2) of the Charter is set out in R. v. Grant, 2009 SCC 32 at para 71. The learned trial judge conducted an assessment on the admissibility of the evidence in accordance with Grant.
[36] In Grant, the Supreme Court stated:
[127] The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision. As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable. (emphasis added)
[37] Notwithstanding the deference accorded to the learned trial judge, I have serious difficulty with the learned trial judge's application of s. 24(2) of the Charter.
Seriousness of the Charter-Infringing State Conduct
[38] From the above fact, Mr. Simpson was arrested by the officers when neither had reasonable and probable grounds to arrest him. At the very least this was careless and perhaps more serious. What follows is serious conduct of the officers. The officers used the unlawful arrest to require Mr. Simpson to comply with an ASD demand, which Officer Leamon testified would either be the basis for an arrest or for the release of Mr. Simpson, and then used the results from the ASD demand to demand a breath sample at the police station for the breathalyser analyst. This last breath sample was the entire case against Mr. Simpson.
[39] Arresting an accused, forcing him to comply with police demands to determine if the officer will charge the person and then using that evidence gathered by the officer as the basis of the conviction is, in my view, deliberate and egregious conduct by the police.
[40] The learned trial judge states that "it was not an easy decision [for the police] to make". It should have been. If the officers were concerned that Mr. Simpson's observed physical condition might have been due to prostate cancer medication, they could have investigated further and either formed a subjective basis for believing that Mr. Simpson had committed an offence and arrest him or, if they didn't form the subjective belief he had committed an offence, let him go. What was clearly and demonstrably wrong was to arrest Mr. Simpson, demand he comply with an ASD demand, use the ASD results to demand a breath sample for the breathalyser analyst and use that evidence against Mr. Simpson.
[41] At page 60 of the March 14, 2014 transcript the following exchange took place:
Q. All right. And then what about if he had blow, I guess, a zero? A. Zero to .49. Q. Zero to .49, sorry. A. He would have - then it would have been no charges laid; his vehicle would have been at home with him and he wouldn't have to go through the inconvenience of going to the station, because it would have been deemed a medical issue. Q. So, that's how you were approaching the Approved Screening Device? A. That's how I was approaching it, yes.
[42] This was very serious Charter infringing state conduct that favours exclusion of the evidence.
Impact on the Charter-Protected Interests of the Accused
[43] The learned trial judge concluded that the impact of the breach was not significant because Mr. Simpson did not suffer a difficult or long detention, the police were considerate of him, and the breath sample was not particularly intrusive.
[44] This simply misses the point that a person's right to be free from arbitrary detention is an important Charter right. An unlawful arrest is itself a significant impact on the accused's rights. Simply being treated with kindness by the police doesn't reduce the impact on the accused. He was unlawfully arrested, required to comply with and ASD demand unlawfully and use the unlawful ASD results to demand a breath sample during this unlawful arrest. The end result was compliance by Mr. Simpson while unlawfully under arrest and the used of that evidence against Mr. Simpson to support the conviction.
[45] This factor favours exclusion of the evidence.
Society's Interest in an Adjudication on the Merits
[46] I accept the learned trial judge's reasons that this factor favours the admission of the evidence.
Conclusion
[47] The learned trial judge did not properly weigh the Grant factors in the context of this case. The police conduct was more serious and had a far greater impact on Mr. Simpson than considered by the learned trial judge.
[48] In conclusion, weighing the factors and considering the impact on the administration of justice, the evidence of the results of the breathalyser analyst is excluded.
[49] There is no other evidence on the charge. As a result, a re-trial is not appropriate. An acquittal will be registered.
Section 11(b)
[50] The Defence submits that the delay of 8 months from the hearing of the evidence, a further almost 4 months postponement for Crown's submissions and a further 4 months for the delivery of judgment is a breach of Mr. Simpson’s s. 11(b) of the Charter rights.
[51] An accused is entitled to a trial in a reasonable period of time, which includes completion of the trial (See R. v. Rahey, [1987] 1 S.C.R. 588).
[52] The difficulty with this submission is that at no time during the various delays were any delay concerns raised by the Defence of completing the matter. It appears from the transcripts that the court, the Crown and the Defence reviewed various convenient dates to continue the submission and what was agreed upon was a date stated to be convenient to all parties. The November 18, 2014 transcript demonstrates a good example of how all parties tried to accommodate each other for a convenient date.
[53] The same thing occurred on March 11, 2015 culminating in Defence counsel saying: "Yes, Your Honour, we have a date that I think works for..."
[54] At no time did the Defence raise any s. 11(b) issue.
[55] At no time did the Defence did not bring a s. 11(b) application before the learned trial judge.
[56] In these circumstances, I decline to hear this motion.
Conclusion
[57] The appeal is allowed. An acquittal will be entered.
Ricchetti, J.
Date: April 25, 2016
COURT FILE NO.: 1091/15 DATE: 20160425
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – LARRY SIMPSON Appellant REASONS FOR JUDGMENT [On appeal from the judgment of the Honourable Justice J. Bovard, dated July 15, 2015] Ricchetti J.