DATE: 20041027

DOCKET: C41473

COURT OF APPEAL FOR ONTARIO

CRONK, ARMSTRONG and LANG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Leslie Paine for the respondent

Respondent

• and -

ROBIN ISELER

Lawrence Greenspon for the appellant

Appellant

Heard: April 30, 2004

On appeal from the judgment of Justice Jean A. Forget of the Superior Court of Justice dated November 12, 2003, sitting as a summary conviction appeal court judge, upholding the conviction entered by Justice Célynne S. Dorval of the Ontario Court of Justice on June 19, 2003.

ARMSTRONG J.A.:

[1] After the appellant was arrested and processed for impaired care and control of a motor vehicle, he was detained in an Ottawa police cell for eleven hours. During that period, he had virtually no contact (except for a few seconds) with any police officer. Counsel for the appellant sought a stay of proceedings on the basis that his rights pursuant to s. 9 of the Charter of Rights and Freedoms not to be arbitrarily detained and imprisoned had been breached. Dorval J. of the Ontario Court of Justice dismissed the appellant’s application. At his subsequent trial, he was convicted as charged.

[2] The appellant appealed to the Superior Court of Justice and his appeal was dismissed by Forget J., sitting as a summary conviction appeal court judge.

[3] In this court, the appellant seeks to set aside his conviction on the ground that the trial judge erred in failing to conclude that the appellant’s detention was arbitrary and in failing to stay the proceedings. While his factum does not expressly allege any error on the part of the summary conviction appeal court judge, I believe it can be taken that the appellant alleges that the summary conviction appeal court judge fell into the same error as the trial judge.

[4] For the reasons that follow, I am of the view that the appellant was subjected to an arbitrary detention and that his Charter rights were breached. However, in the circumstances, I am not satisfied that this is the kind of case that calls for a stay of proceedings. I would, therefore, dismiss the appeal.

The Facts

[5] On the evening of March 28, 2002, the appellant attended at the Lucky Seven bar in Embrun, Ontario, which is located approximately two miles down the road from his house in Russell, Ontario. The appellant consumed a few beers – he was unable to recollect how many – between 8:30 p.m. and 1:30 a.m.

[6] When he left the bar, a friend told him that he knew a shortcut to his house and suggested he follow him. However, the appellant became hopelessly lost. After driving around for half an hour, he grew tired and decided to pull over to the side of the road, take a nap and then attempt to find his way home by daylight.

[7] At 2:52 a.m., an officer with the Ottawa Police Force came upon the appellant sleeping in his vehicle, which was parked on the side of the road. The motor of the car was running and his headlights were lit up on high beam.

[8] The appellant took some time, as he “fumbled around”, to produce his driver’s licence. The police officer detected the smell of alcohol on the appellant’s breath and administered a roadside breath test. The appellant registered a “fail” on the roadside screening device.

[9] The police officer arrested the appellant and took him to an Ottawa police station, where they arrived at about 3:45 a.m. The appellant was given an opportunity to speak to counsel. He provided two breath samples to a breathalyzer technician at 4:25 a.m. and again at 4:49 a.m. His readings were .177 and .175 respectively.

[10] The appellant was then detained in a cell in the Ottawa police station at about 5:00 a.m. After three or four hours, the appellant began to feel ill and needed to use the toilet in his cell, but there was no toilet paper. He attempted to attract the attention of the responsible police officers by gesturing to the security camera, rattling the cell bars and shouting – all to no avail. About an hour later, the appellant again tried to attract the attention of those responsible for his incarceration, but was unsuccessful.

[11] Approximately one hour before he was released, a police officer walked by and threw a submarine sandwich into his cell. It was then about 3:00 p.m. The appellant asked the officer about his status. The officer kept walking, but said that they were behind and that he would be dealt with shortly. This encounter lasted about five seconds.

[12] The appellant was finally released at 4:01 p.m. During his eleven-hour detention, he had no contact with any person other than the five-second encounter with the police officer who threw him the submarine sandwich. The appellant had sufficient funds to take a taxi home. Also, his wife was at home with a car and could have picked him up at the police station.

[13] When counsel for the appellant served notice of the Charter application, the Crown filed a respondent’s factum in which it was noted: “The Respondent will also rely on the viva voce evidence adduced, including the cellblock sergeant, Sgt. McCaffery” [emphasis added].

[14] When Sgt. McCaffery testified in response to the Charter application, he said that he had begun his shift at 2:30 p.m. in the afternoon. He could not remember anything about the appellant and simply relied on the police computer record, which indicated that he had released the appellant at 4:01 p.m.

[15] Sgt. McCaffery also testified that, as a matter of policy, persons charged with impaired driving and related offences are released according to their level of sobriety. As a “rule of thumb”, police officers rely on an elimination rate of approximately 15 mg of alcohol per hour. However, he was not able to say that any such assessment was made in the appellant’s case. It would appear from the evidence that no such assessment, if any, was made until the appellant was released at 4:01 p.m.

The Trial Judge’s Ruling

[16] After reviewing the relevant facts, the trial judge said:

There is no evidence before me that indeed the police saw him gesturing on the video camera and ignored him. There’s simply no evidence as to the result of that gesturing. As is evident from the time frames, Mr. Iseler was in custody for over 11 hours, and I do not have any evidence as to how long he would have gone on gesturing, but if we assume that he’s gestured on two occasions for a few minutes, I have simply no evidence before me as to what came of that gesturing.

With respect, I would have thought that the conclusion on the evidence is obvious – nothing came of that gesturing. The police either paid no attention to the gesturing, or they were unaware of it because they simply failed to monitor the security camera. In either case, those responsible for his incarceration and well-being would appear to have failed in their duty.

[17] In dismissing the application for a stay, the trial judge considered the judgment of this court in R. v. Sapusak, [1998] O.J. No. 4148 and the judgment of Cunningham J. in R. v. Burns, [2000] O.J. No. 1743 (S.C.J.). In my view, both of those cases are distinguishable from the case at bar insofar as they conclude that there was no Charter breach.

[18] In Sapusak, the accused was held for seven hours after taking a breathalyzer test. However, the police officer responsible for his detention testified that it was his decision to wait approximately six or seven hours to ensure that the accused’s blood/alcohol reading was below 50 mg when he was released. The trial judge in Sapusak concluded that the decision of the police officer was not arbitrary. There is no evidence of such an assessment by a police officer in the case before us.

[19] In Burns, the accused was held for five hours after undergoing a breathalyzer test. There is some similarity to the present case in that the arresting officer and the breathalyzer operator in Burns could not explain why the appellant was not released as soon as he was charged. They both testified that there was no reason to fear for his safety, or that of the public. The trial judge concluded that, on the evidence before him, the accused was not arbitrarily detained. On appeal, Cunningham J., sitting as a summary conviction appeal court judge, held at para. 10:

The appellant agrees that what probably occurred here was that the appellant simply fell through the cracks and that no‑one is able to account for this detention. Even if that is so, the appellant says that that is outrageous and that the most appropriate remedy should have been a stay of proceedings. I disagree that the continued prosecution of this case constituted something offensive to society’s sense of justice, and I cannot conclude that the approximately five hour unexplained detention was arbitrary in the sense of it being capricious, despotic, tyrannical or autocratic. I conclude that the trial judge was perfectly entitled to make the finding he did given the evidence of the appellant’s signs of impairment and the readings of one and a half times the legal limit.

[20] Cunningham J. further concluded at para. 13:

There is no evidence that the appellant was detained for an improper purpose, and given the onus upon the appellant it might have been appropriate to have called the cellblock sergeant. The onus is upon the appellant to prove an arbitrary detention on a balance of probabilities. This is not a situation such as that of a warrantless search where the onus shifts. In the case of a warrantless search, there is a presumption of unreasonableness and that is why there is a shifting onus. The same does not apply in the arrest situation. No error in principle has been demonstrated in the present case.

[21] The trial judge in the present case, in reference to Burns, said:

I conclude, as did Justice Cunningham in this case, that the applicant has not satisfied the onus of establishing that he was detained arbitrarily.

[22] Burns is distinguishable both on the facts and on the burden of proof. In my view, there is a considerable difference between a detention of five hours and a detention of eleven hours in which the appellant was ignored for the entire period of time, except for a five-second interlude at the tenth hour.

[23] In respect of the burden of proof, the appellant testified in this case and it was the expectation of his counsel that the Crown would call the cellblock sergeant as was indicated in the Crown’s factum. Given the Crown’s indication that it intended to call this witness, there was no reason for the appellant’s counsel to call the cellblock sergeant and it would have been questionable advocacy if he had done so, as he would have given up the opportunity to cross-examine the officer.

[24] As it turned out, the cellblock sergeant was not the appropriate officer to testify, as he had no evidence to provide. However, I do not think that any fault in that regard should be, or can be laid at the feet of counsel for the appellant. Based upon the Crown’s representation that the cellblock sergeant was to be called, the appellant’s counsel had the right to assume that the relevant cellblock officer would testify. In my view, the trial judge erred in his application of the burden of proof in this respect.

[25] The appellant presented a prima facie case of arbitrary detention that, in my view, called for some answer by the Crown, particularly in view of its representation that the cellblock sergeant would be called. The Crown answered with the evidence of Sgt. McCaffery. His evidence was of no assistance. No other evidence was called. In these circumstances, I do not see that there was any obligation on the appellant, as suggested by the trial judge, to locate and call the cellblock officer who was on duty between 5:00 a.m. and 2:30 p.m. In my view, the appellant had discharged his burden.

The Summary Conviction Appeal

[26] The summary conviction appeal court judge, after briefly stating the facts, simply said:

Justice Dorval certainly took this matter seriously, and she felt bound by the decision of Sapusak, which is a decision of the Ontario Court of Appeal, and also by the decision of my brother Judge Cunningham in R. v. Burns.

The only other comments by the summary conviction appeal court judge related to the request for a stay of proceedings as an inappropriate remedy. He then dismissed the appeal.

[27] The summary conviction appeal court judge did not address the issue of whether Sapusak and Burns could be distinguished. He did not make mention of whether the burden of proof had been discharged by the appellant.

[28] In my view, the summary conviction appeal court judge can be taken as having adopted the trial judge’s reasoning and, for the reasons already given, I believe he too was in error.

Conclusion

[29] On the basis of the above analysis, I conclude that the appellant made out a case before the trial judge of arbitrary detention and, therefore, his Charter rights under s. 9 of the Canadian Charter of Rights and Freedoms were breached. However, that does not end the matter. I must consider whether there should have been an order granting a stay of proceedings. Both the trial judge and the summary conviction appeal court judge expressed the view that, if they were in error in failing to find a case for arbitrary detention, this is not an appropriate case for a stay of proceedings. I agree with their conclusion.

[30] In O’Connor v. The Queen (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.), affirming 1994 6415 (BC CA), 89 C.C.C. (3d) 109, L’Heureux-Dubé J. said at para. 82:

It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

[31] While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant’s s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, “[t]here was no temporal or causal connection between the breach and the obtaining of the evidence”. I am accordingly satisfied that this is not “the clearest of cases” warranting the grant of a stay of proceedings.

[32] It may be that there is some other remedy available to the appellant, but the only question before us is the request for a stay of proceedings. On this appeal, he seeks an acquittal, or, in the alternative, a new trial on the basis that a stay of proceedings should have been granted. In my view, none of these remedies is appropriate.

[33] In the result, I would dismiss the appeal.

Released: OCT 27 2004 Signed: “Robert P. Armstrong J.A.”

EAC “I agree. E.A. Cronk J.A.”

“I agree. S.E. Lang J.A.”