Court File and Parties

Court File No.: Central East – Newmarket 4911-998-10-10630-00

Date: 2012-03-16

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Fabian DiMaria

Before: Justice S.C. Armstrong

Ruling on a Charter Application released on March 16, 2012

Counsel:

• S. Kumaresan, for the Crown
• F. Pizzimenti, for the accused Fabian DiMaria

ARMSTRONG J.:

Overview

[1] On October 7, 2010, Fabian DiMaria was charged with driving while the alcohol level in his blood exceeded the legal limit contrary to section 253(1)(b) of the Criminal Code.

[2] Defence counsel brought a Charter application in which he alleged that Mr. DiMaria's section 8, 9 and 10(a) rights were infringed in the parking lot of a shopping plaza on Elgin Mills Road just east of Yonge Street and that his section 8 and 9 rights were infringed at the police station.

[3] In my opinion, Mr. DiMaria's section 8 and 9 Charter rights were violated when he was handcuffed in the parking lot and the evidence obtained after the breach, including the breathalyser test results, should be excluded under section 24(2). It was therefore unnecessary for me to consider the Charter breaches that are alleged to have occurred at the police station.

The Evidence

[4] It is undisputed that on the night in question, Mr. DiMaria and his friend, James Power, pulled their cars into a strip plaza on Elgin Mills Road just east of Yonge Street to buy cigarettes before going their separate ways home. They parked their cars beside one another in the parking area facing south towards the road. The arresting officer parked his cruiser facing eastbound about fifteen feet behind the defendant's car. He blocked their cars, at least partially. His intention was to stop and perform a Highway Traffic Act investigation of the defendant for making unnecessary noise by revving the engine of his car and for making an illegal left turn. Mr. DiMaria got out of his car and met the officer at the passenger side of his cruiser.

The Arresting Officer's Testimony

[5] The officer testified that he watched the defendant get out of his car and walk towards the four-door sedan parked beside it. This was Mr. Power's car. The officer testified that, at this point, he told Mr. DiMaria that he was stopping him because of excessive engine noise and the type of turn he had made. This is not noted in his notebook. However, the officer said that he remembered telling him why he stopped him. He asked him for his driver's licence and the ownership and insurance papers for the car.

[6] Based on his observations of Mr. DiMaria's driving and the signs of alcohol impairment that he detected when he stopped him, the officer made a roadside ASD or approved screening device demand. According to the officer, he then administered the ASD test, which the defendant failed, and proceeded to arrest him for "operating over 80", and to handcuff and search him.

[7] In addition, the officer remembered the driver of the other car, Mr. Power, getting out of his car and standing off to the side watching what was going on from a safe distance. However, he could not recall if Mr. Power had already got out of his car when he was speaking to Mr. DiMaria. He said he believed Mr. Power was standing outside the cruiser on the passenger side when he performed the screening test.

[8] In cross-examination, the officer disagreed that he handcuffed Mr. DiMaria behind his car, frisked him and put him in the cruiser before he administered the screening test. He repeatedly denied that he handcuffed him before administering the test. He said he only did this where there was a "mental health situation". However, he testified that he did not believe that the defendant was in the cruiser when he administered the test, and that he administered it outside in the area near the cruiser. He said that he held the screening device not because Mr. DiMaria was handcuffed but (1) so that he did not block the exhaust port on the back of the device, (2) to prevent the device from being broken and (3) so that if he suspected that the defendant was fooling around and only pretending to blow, he could pull the device away to see what was going on.

[9] However, the officer admitted that he was relying on his memory in giving this testimony. There was nothing in his notebook saying where he was when he made the roadside demand, or where he was when he performed the test. Although he testified that he performed the test in the area near the cruiser, he could only testify that he did not believe he administered it when the defendant was in the cruiser.

James Power's Testimony

[10] James Power testified that once they had parked their cars at the strip plaza, Mr. DiMaria was the first to get out of his car and go to speak to the officer through the passenger side window of his cruiser. He said he got out of his car just after the defendant had spoken to the officer. He said he saw the officer get out of his cruiser and request Mr. DiMaria to put his hands on the trunk of his car. He said the officer asked the defendant if he had had anything to drink, and told him to step away. Accordingly, Mr. Power stepped about 15-20 feet to the west. He said he saw the officer proceed to handcuff the defendant behind his back, search him – that is, frisk his chest, legs and ankles - and put him in the rear of the cruiser. He said that he did not see the officer administer any sort of breath test before he handcuffed him. He said a second police officer arrived after the defendant had been handcuffed and searched his car.

The Section 10(a) Issue

[11] There is no dispute that when the officer blocked in Mr. DiMaria's car and started to investigate him about Highway Traffic Act violations, he was detained. The issue is whether he breached the defendant's section 10(a) Charter right by failing to inform him promptly of the reason for his detention. In turn, this issue breaks down into a question of whether the officer failed to inform Mr. DiMaria of the reason for his detention or whether he simply failed to make a note of doing so in his notebook.

[12] It is clear to me that the officer had no note in his notebook about informing Mr. DiMaria of the reason for detaining him. The officer stated that he was required under the Police Services Act to make notes of his investigations and that he had been trained in how to make notes. He acknowledged that advising a person of the reason for detaining him or her was an important and noteworthy event. However, his position was that he simply failed to make a note of doing so in this case.

[13] At the outset, I have to say that I find it hard to accept that the officer simply omitted to make a note that he informed the defendant of the reason for his detention because of the important function that officers' notes play in the current disclosure process. The police stopped providing will-say statements for police witnesses some years ago. As such, an officer's notes are not simply aids to refresh the officer's memory when testifying in court. They are part of the record of significant events in an investigation that are given to the Crown to enable it to assess the case, to determine that there is a reasonable prospect of conviction and that it is in the public interest to prosecute the case and, if so, to prepare the case for trial. In addition, these notes are used to make disclosure to the defence to enable them to make full answer and defence to the charge.

[14] The officer attempted to explain why he had no note of informing Mr. DiMaria of the reason for his detention. He said that when he was making his notes he was involved in a criminal investigation and stated that this was perhaps why he did not note the reasons for detaining the defendant under the Highway Traffic Act, especially since he exercised his discretion not to charge him with any offences under that Act once he charged him with a criminal offence.

[15] While this explanation is plausible, I did not find it entirely persuasive. It struck me as possible explanation rather than an explanation of what actually took place. On the officer's evidence, it is clear that what started as a Highway Traffic Act investigation changed quickly into a criminal investigation: the officer started to speak to the defendant as soon as he got out of his car; when he noticed a slight slur in his speech, the officer asked him about alcohol consumption; the defendant said he had consumed alcohol; and the officer proceeded to read him the ASD demand. In these circumstances, it seems equally possible that that the officer failed to inform the defendant of the reason for his detention, rather than simply failing to make a note of doing so.

[16] In addition, the officer maintained that, although he had nothing in his notebook, he remembered advising the defendant of the reason for his detention. When he was testifying in court some thirteen months after the incident, the officer said that he remembered this case fairly well because it was his first drinking and driving case after returning to the Traffic Enforcement Unit following a year's absence, and because of his previous contact with the area: he said he had done a collision investigation where a man lost his leg and an accident reconstruction at this location. I took him to mean that these events helped him remember this incident.

[17] On the other hand, he said he did about 600 traffic stops a year and it is common knowledge that memories fade over time. I am therefore sceptical that the officer would specifically remember that he told the defendant why he was being detained as opposed to describing his normal practice when detaining a motorist.

[18] In summary, based on the evidence in this case, I accept the defence argument that on a balance of probabilities the officer failed to inform the defendant of the reason for his detention. To me, telling an individual why they are being detained is a significant, noteworthy event, and the officer's explanation as to why he did not make a note of doing so was not compelling enough to exclude the alternative that he did not tell the defendant why he was being detained.

[19] Further, I do not accept that the officer remembered informing Mr. DiMaria of the reason for his detention: he performs hundreds of traffic stops a year, and while he says he remembers this case because it the first one he was involved with after a year's absence and because of previous experience at the same location, I am not persuaded that he had a specific recollection of informing the defendant of the reason for his detention, as opposed to describing his normal practice when detaining a motorist.

[20] In addition, I noticed that the officer made other mistakes in his testimony. For example, he stated several times that Mr. Power's car was a four-door sedan, whereas it is clear to me from Mr. Power's evidence that his car was a two-door sedan. Finally, there were other issues with the officer's notes, as described below.

Section 8 and 9 of the Charter: The Handcuffing Issue

[21] As noted above, the officer stated in direct examination that he administered the roadside ASD test, and then arrested and handcuffed the defendant. Although the officer disagreed in cross-examination that he handcuffed the defendant behind his car, frisked him and placed him in the back of the cruiser before he administered the roadside screening test, he could not provide any firm factual detail to support this position. And his notes and memory did not assist him.

[22] My notes are that he said he could not recall if he was out of his car when he was dealing with the defendant and that he believed he was outside his cruiser on the passenger side when he read him the roadside demand. He admitted that there was nothing in his notes to indicate where he was when he made the roadside demand. He said he was relying on a note to the effect that Mr. DiMaria was the lone occupant of his car and came over to the passenger side window of the cruiser, as well as on his memory. He said he did not believe he was in the cruiser when he administered the screening test, but admitted that he was relying solely on his memory in saying this.

[23] Mr. Power's testimony is entirely different: he testified that the officer handcuffed Mr. DiMaria, frisk searched him and put him in the cruiser before administering any sort of breath test.

[24] Mr. Power admitted that although he had an unobstructed view of the back of the cruiser when no one was in it, he did not have a completely clear view once the defendant and the arresting officer got into the cruiser. As well, Mr. Power was also watching the other officer search the car. However, he said it looked like the officer was administering the breath test in the back of the cruiser. He said he had been subject to a traffic stop himself and had been asked to provide a breath sample three times, but had never been charged. This suggested to me that Mr. Power was familiar with the roadside breath testing procedure and the type of instrument used, and supported his assertion that he did not see the officer administer any sort of breath test before he handcuffed the defendant.

[25] Mr. Power was cross-examined extensively about his recollection of events. He candidly admitted that, because the incident occurred over a year before he testified, his "recollection could be clouded", and that certain details had faded in his memory, while others stood out. However, the two things that stood out in his mind were the search of the defendant's car and the way he was handcuffed. He said the handcuffing stood out because it was happening to a friend and because he did not remember hearing him being read his rights or seeing a screening test being administered before he was handcuffed. He remembers the officer saying to Mr. DiMaria, "Sir, place your hands on the back of the car", or words to that effect. He remembered that after Mr. DiMaria did so, the officer turned to him and asked him if he had had anything to drink. He then told him to stand away, which Mr. Power did. Then the officer handcuffed Mr. DiMaria. When the Crown suggested to Mr. Power that the defendant was handcuffed after he had failed the screening test, he said that this was not possible, as he recalled events.

[26] In assessing Mr. Power's testimony, I kept in mind that he was a friend of the defendant and could be biased. He testified that he joined Mr. DiMaria that night at the house of a mutual friend to watch the Maple Leafs opening hockey game with some friends. He said that he only had one drink about four hours before he left the party because he had to go home to continue studying for his final trade school examination at Humber College the next morning. Ultimately, when I considered the details of his testimony and the straightforward manner in which he presented it, there was nothing to make me disbelieve his testimony or be suspicious of its reliability. In other words, it could reasonably be true. On this basis, I accept it.

[27] Accordingly, based on the evidence in this case, I find that the defendant was handcuffed by the officer before he performed the roadside screening test. As such, he was arbitrarily detained contrary to section 9 of the Charter. The taking of a breath sample at the roadside was a form of search. In my opinion, it was a search that violated section 8 of the Charter because the manner in which it was conducted was unreasonable, that is, because Mr. DiMaria was in handcuffs for no good reason: see R. v. Collins, 33 C.C.C. (3d) 1 at 12 (S.C.C.)

Section 24(2) of the Charter

[28] Under the revised approach to the exclusion of evidence under section 24(2) established in R. v. Grant, 2009 SCC 32, three factors are relevant to an assessment of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute: (1) an evaluation of the seriousness of Charter-infringing state conduct: (2) the seriousness of the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in an adjudication of the case on its merits. After considering these factors, a court must then balance the assessments under each line of inquiry in determining whether admission of the evidence would bring the administration of justice into disrepute.

[29] Applying the three-stage inquiry to the section 8 and 9 breaches in this case, I find first that the police conduct in handcuffing Mr. DiMaria before conducting the roadside screening test was serious, and should not be condoned by the court. This factor favours exclusion. Second, the handcuffing of the defendant had a serious impact on his liberty and dignity. This factor favours exclusion. Third, the roadside screening device evidence was reliable physical evidence. Its admission would be of crucial importance to the truth seeking function and conduct of the trial. The value of this evidence was considerable. This factor favours admission.

[30] When I balance these factors in order to determine whether the admission of the roadside screening evidence would bring the administration of justice into disrepute, my conclusion is that the roadside screening device evidence should be excluded. Although this evidence was reliable physical evidence, which was essential to a determination on the merits, there was no justification for handcuffing the defendant in the circumstances of this case, and the impact on his liberty and dignity was considerable.

[31] Since my ruling on the section 8 and 9 breaches in the parking lot is dispositive, whether the section 10(a) breach would be saved under section 24(2) becomes a moot point. To be complete, however, let me state that if this had been the only Charter violation, I would not have excluded the evidence obtained after the breach. In this case, the failure to inform the defendant of the reason for his detention was not deliberate or flagrant, the impact on the defendant's rights was short and there is a clear public interest in a trial on its merits. Events were moving quickly: a Highway Traffic Act investigation turned quickly into a criminal investigation. The defendant was arrested shortly after his detention, he was promptly told he was being arrested for "over 80" and the officer exercised his discretion not to charge him with any Highway Traffic Act offences. Applying the Grant test in these circumstances would lead me to admit evidence obtained after the section 10(a) breach, if it had been the only Charter infringement.

Released: March 16, 2012

Signed: Justice S.C. Armstrong