Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Mario Carrion-Munoz

Before: Justice H. Borenstein

Heard on: May 24, 2012 and August 14, 2012

Reasons for Judgment released: August 28, 2012

Counsel:

• Ms. M. T. Monteiro for the Crown
• Ms. H. Spence for Mario Carrion-Munoz

BORENSTEIN J.:

Facts and Arrest

[1] Mario Carrion-Munoz is charged with impaired driving and driving while "Over 80".

[2] He was arrested by an off-duty police officer, P.C. Kim, who allegedly saw him driving erratically on the northbound Don Valley Parkway ("DVP"). Officer Kim, who had already completed his shift and was driving home, was concerned enough about the driving he observed that he changed direction and followed Mr. Carrion-Munoz from the DVP, to the 401 and then south on Kennedy Road, where Mr. Carrion-Munoz drove into a centre median causing his tire to go flat. He then continued driving a short distance until he pulled into a parking lot. P.C. Kim approached the accused and detected a strong odour of alcohol and some unsteadiness. Kim arrested the accused for impaired operation and awaited uniform officers to attend. Sergeant Chow and other officers arrived and transported the accused to 41 Division.

[3] Mr. Carrion-Munoz was paraded, booked and his property was removed from him as is standard procedure. A Spanish speaking police officer, P.C. Barecenas-Pineda, translated for the accused throughout the evening.

[4] At 12:38 a.m., after speaking with a Spanish-speaking duty counsel, Mr. Carrion-Munoz provided his first breath sample registering a reading of 202 milligrams of alcohol per 100 millilitres of blood. His second sample was provided 20 minutes later, producing a reading of 192 milligrams of alcohol per 100 millilitres of blood. He was finished around 1:00 a.m.

[5] Based on his breath readings, Staff Sergeant Routh decided to lodge Mr. Carrion-Munoz in the cells. Sgt. Routh testified that he usually releases people when their BAC is around 100 mg. per cent. He used the commonly used elimination guideline of 15 mg. per cent per hour so thought he would detain the accused for about six hours.

[6] Mr. Carrion-Munoz is 55 years old and has no criminal record. He was consistently described by all of the police officers as polite and cooperative.

[7] He advised Staff Sgt. Routh that he had work in the morning and asked if he could take a taxi home or have a friend pick him up. He was told he had to wait.

[8] The decision to lodge Mr. Carrion-Munoz resulted in him being strip searched and, due to shift changes, held until about 10:30 in the morning.

Issues at Trial

[9] The issues in this trial are the following:

[10] Has the Crown proved beyond a reasonable doubt that Mr. Carrion-Munoz's ability to operate a motor vehicle was impaired by alcohol?

[11] With respect to the "over 80" charge, the defence submits that the charges ought to be stayed due to the police decision to lodge Mr. Carrion-Munoz in the cells once he completed the required breath tests. The stay is based on that decision, which has been characterized as "overholding" together with the strip search that occurred notwithstanding any efforts by Staff Sgt. Routh to avoid ordering a strip search. The defence submits that this conduct violated sections 8 and 9 of the Charter and that a stay pursuant to section 24(1) is the appropriate remedy.

[12] In addition, the defence submits that there were no grounds to believe Mr. Carrion-Munoz was impaired and that the arrest and subsequent breath demand was unlawful and that the breath results ought to be excluded.

[13] Turning to the relevant evidence more closely.

Evidence: P.C. Kim

[14] Constable Kim testified that he was driving home after his shift. He was travelling north on the D.V.P. in the left lane, or lane 1. He intended to continue along the DVP/404 north of Highway 401. While driving northbound in Lane 1, and while still south of the 401, his attention was drawn to the accused's car as the accused pulled up quickly behind the car to Kim's right in Lane 2. The accused began tailgating that car for a period of time. Kim estimated that the accused was travelling at 100 kilometres in a 90 kilometre per hour zone. The accused then pulled behind Kim and began tailgating him and then went into the far right lane, Lane 3 and slowed down. Kim testified that the accused then straddled between Lane 3 and the curb and then between Lanes 3 and 2. The accused was travelling approximately 60 kilometres per hour at this stage.

[15] The accused then travelled east on Highway 401 and continued tailgating cars. Kim diverted from his own route and followed the accused. The accused exited at Kennedy and made a sweeping turn onto southbound Kennedy Road from the middle rather than right turn lane. On southbound Kennedy, the accused went into middle lane which is used as a common turn lane for both south and northbound traffic. Officer Kim feared that the accused would hit an oncoming car. The accused veered right to avoid the car but, in doing so, struck a cement island separating the north and southbound lanes. The accused's car briefly went in the air causing its tire to go flat and a hub cap to come off. The accused continued driving for a short distance, turned on Ellesmere Avenue and pulled into a parking lot. The accused exited his car and inspected the flat tire. Kim approached.

[16] As Kim got within two or three feet of the accused, he detected a very strong smell of alcohol. He testified that the accused lost his balance and nearly fell. Kim took control of the accused's elbow to steady him and told him he would be arrested for drinking and driving. He said it would be a citizen's arrest. Kim was aware that the accused spoke Spanish. The accused had a puzzled or dazed look and his speech, thought accented, seemed slow and slurred. While the accused had an olive complexion, Kim noticed that his cheeks were flushed.

[17] In cross-examination, Kim denied flashing his headlights or doing anything that would have caused the collision.

[18] Kim testified that he did not believe that the accused understood everything he was saying due to language difficulties but that he believed he understood in general that he was being arrested for drinking and driving.

[19] Kim conceded that the accused was not stumbling or swaying however he seemed to be bracing himself internally.

[20] Sergeant Chow arrived on scene at 10:24 p.m. to take control of the arrest since Kim was off duty. He realized that the accused spoke Spanish and knew that a Spanish-speaking officer would be arriving at the station at 11:00 p.m. He transported the accused to the station and facilitated the booking, right to counsel and the breath tests.

[21] Officer Chow noted a strong odour of alcohol coming from the accused and testified that the accused appeared impaired. He was asked why he believed the accused was impaired and replied that his opinion was based on the accused's "demeanour". He explained that the accused had a strong odour of alcohol and seemed a little unsteady. He agreed that the only relevant note he made was that there was a strong odour of alcohol that he detected. He noted nothing regarding any unsteadiness or slurred speech. Chow testified that he would rely on the video of the accused at the station for those matters. The video was played in court and he agreed that the accused did not show any unsteadiness. I too note no unsteadiness or slurred speech evident on the video that has been made an exhibit.

[22] P.C. Barecenas-Pineda testified. He translated for the accused at the police station that evening and accompanied the accused throughout. He was testifying about events that occurred 10 months earlier. He testified that the only indicia of impairment that he noted was a strong smell of alcohol coming from the accused's breath. However, in his testimony, he recalled that the accused had slurred speech. He did not note that and did not see nor note any other indicia such as unsteadiness.

[23] Following the breath tests, he paraded the accused before Staff Sgt. Routh at 1:20 a.m. Sergeant Routh advised Barecenas-Pineda that, due to the breath readings, the accused would have to remain at the station. As a result, Officer Barcenas-Pineda and another officer conducted a Level 3 strip search upon the accused. The accused was taken to a room, off camera, and was told to remove all of his clothes, one item at a time, to be searched. The accused was never left completely naked. He would remove an item, it would be inspected, and then returned and placed back on. The strip search lasted three to five minutes and nothing out of the ordinary occurred. No contraband or weapons were found.

[24] Barecenas-Pineda testified that the accused was co-operative throughout the evening and was not at all aggressive. Nothing he said or did caused any officer to suspect that he possessed drugs or weapons. There was no discussion between the officers regarding drugs or weapons. The officers had no safety concerns relating to Mr. Carrion-Munoz. He was being held as a result of his breath readings and the strip search was conducted because he was being held in cells adjacent to another prisoner. Barecenas-Pineda could not recall nor dispute that Carrion-Munoz advised him that his girlfriend could pick him up.

[25] Constable Andrews, the qualified breath technician received the accused at 12:29 am. He had been advised that the alleged offence occurred over two hours earlier at 10:20 p.m. P.C. Andrews was satisfied that the approved instrument was in proper working order. At 12:38 a.m., the accused provided a suitable breath sample resulting in a reading of 208 milligrams of alcohol per 100 millilitres of blood. At 12:58 a.m., a second suitable sample yielded a result of 192 milligrams of alcohol per 100 millilitres of blood.

[26] P.C. Andrews noted that the accused eyes were red and glassy and that he had an odour of alcohol coming from his breath. He noted no other signs of impairment. I note that P.C. Andrews was the only officer to testify that the accused's eyes were red and this was two hours after he arrived at the station at almost one in the morning. Officer Andrews was of the opinion that the effects of alcohol were moderate and noted on his form that signs of alcohol consumption were present.

[27] Given that the breath readings were taken more than two hours after the alleged offence, the Crown produced a toxicologist report from the Centre of Forensic Sciences which was admitted on consent indicating that Mr. Carrion-Munoz's blood alcohol concentration at the time of driving would have been between 195 and 240 milligrams of alcohol per 100 millilitres of blood.

[28] Staff Sgt. Routh was the officer in charge of the station that night and the one who made the decision to lodge Mr. Carrion-Munoz.

[29] Staff Sgt. Routh is responsible for the flow of persons in and out of the police division. At 1:25 a.m., the accused was brought before him having completed the breath tests. Staff Sgt. Routh was aware that one of the readings was 192 milligrams and in Staff Sgt. Routh's view, readings in that range represent a safety concern to the accused and caused some concern about an individual's ability to understand the release documents. Accordingly, Sergeant Routh decided that he would detain the accused in the police cells until he reached a reasonable limit of sobriety. Staff Sgt. Routh was taught that the average person eliminates 15 milligrams of alcohol per hour and, in general, he allows persons to be released when they are at 100 milligrams of alcohol per 100 millilitres of blood. He estimated the accused would be lodged for six hours.

[30] On the booking video, the accused is seen telling Staff Sgt. Routh that he has work at 8:00 in the morning and asks if he can have a friend pick him up. The Staff Sergeant replies no, not with those readings as he was responsible for his safety.

[31] After watching the video in Court, Staff Sgt. Routh testified that he was also concerned about how the accused would get to work in the morning, whether he operated a vehicle, chemicals or heavy machinery and those factors were also part of his reason to detain the accused until he sobered up.

[32] In cross-examination, he testified that the decision to detain was not based exclusively on the breath readings but also on the unsteadiness seen on the video. As noted earlier, other witnesses and myself saw no swaying on the video. Further, Staff Sgt. Routh made no attempt to ascertain whether the accused understood his release. The accused was going to be detained until his readings came down.

[33] When it was suggested that the officer did not make inquires about whether a family member could pick up the accused, he replied that, with readings of 192, he did not think release was likely.

[34] Having made the decision that the accused was going to be detained, the question arose where he would be detained.

[35] There are 12 cells at 41 Division in addition to a separate "bull-pen" area. There were already 11 males in custody in the cells and a female prisoner was being kept in the bull-pen. Accordingly, there was one cell left at the end of a row of cells. It was adjacent to another cell, separated by bars. Staff Sgt. Routh testified that there were two other persons waiting to conduct breath tests and he did not yet know if they too would be lodged as he did not yet know their blood alcohol levels. Sergeant Routh knew he could not completely segregate the accused. He would normally only conduct a Level 2 search on an impaired person where he anticipated releasing the person from the station. A Level 1 search is a pat-down search. A Level 2 search involves emptying an accused's pockets and removing his or her laces. Routh was aware that there had already been a Level 2 search conducted with nothing found and he was not advised of any concerns relating to the accused. However, because the accused was going to be placed in a cell next to another prisoner, he would have to be strip searched to ensure that he did not have any items that could be used to harm himself or others. Staff Sgt. Routh was not concerned that the accused possessed any weapons but was more concerned with day-to-day items that might be used as a weapon, such as a string or safety pin. He has a responsibility to protect all prisoners, the police, court staff and the judiciary.

[36] Staff Sgt. Routh called two neighbouring police divisions to see if they could lodge they accused but they too were over capacity.

[37] Staff Sgt. Routh was cross-examined on the TPS strip search policy concerning when a strip search should be conducted on a person in a police division. It lists the criteria the officer in charge should consider. The TPS policy lists certain risk factors to be considered prior to conducting a strip search. Some of the factors the TPS instructs officers to consider include whether the offence in question involved violence or weapons, or drugs, whether the accused has a history or was a known drug user. None of the factors mentioned in the policy tended to suggest a strip search should be conducted. Sgt. Routh testified that the TPS policy was not very helpful and the Courts do not provide clear direction on the issue.

[38] He agreed he did not have reasonable grounds to suspect that the accused would pass anything to another inmate but testified that he was concerned about the "mere chance" that that could happen. He testified that, because this was a custodial search, he did not require reasonable grounds.

Accused's Evidence

[39] The accused testified on both the trial and Charter voir dire. He works as a cleaner. The night in question was his birthday. He had three beers and five or six glasses of wine between finishing work at 6:00 or 7:00 p.m. and the time he was stopped by the police shortly after 10:00 p.m.

[40] He testified that the D.V.P. is a very curvy road which would explain any straddling. He testified that he often drives his co-worker home and she always complains about the way he drives on the D.V.P. When he was on Kennedy Road, he noticed a car (allegedly P.C. Kim's car) flashing his headlights from behind and honking his horn. He testified that he then noticed a car approaching him which he thought might hit him so he deliberately crashed into the centre median to avoid colliding with that car. He was then asked to elaborate on the cause of the collision and testified that it was Kim's car behind his and coming too close that was the cause of the accident. He explained that there was no northbound car with which he almost collided. He hit the island due to P.C. Kim's car. He then continued driving, turned onto Ellesmere Avenue and pulled into the parking lot. He was then approached by P.C. Kim and arrested. He did not exit the car before Kim approached and was not unsteady on his feet.

[41] At the station, Mr. Carrion-Munoz described being strip searched. Far from the routine nature of the search from the officer's perspective, Mr. Carrion felt humiliated. He was told to remove each item of clothing. He testified that the officer did not actually inspect his clothes. His shorts remained on the floor briefly and the officer looked at him and told him to put them back on. The search was done quickly. He could not sleep thereafter. He remained in his cells praying until two officers came to him in the morning and told him he would be released as soon as they could locate an interpreter.

[42] That was the evidence called at this trial.

Submissions of Counsel

[43] The Crown submits that it has proved Mr. Carrion-Munoz's guilt on both charges. Mr. Carrion-Munoz was operating a motor vehicle. He was well over the legal limit and his ability was impaired by alcohol.

[44] The defence submits that the Crown has not proved beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol. With respect to the "over 80" charge, he concedes that he was over the limit but submits that there were no reasonable and probable grounds to believe that he was impaired and therefore the breath demand was unlawful, contrary to the Charter and the readings ought to be excluded.

[45] Further, he seeks a stay of all proceedings as a result of the decision to detain and strip search following his completion of the breath tests. He submits that that detention was unlawful and arbitrary as there were no grounds to justify his detention. Further, he submits that the decision to strip search that followed the illegal detention violated section 8 of the Charter. He submits that, even if the detention was lawful, there was no lawful basis to strip search him in this case. He submits that a stay pursuant to section 24(1) is the just and appropriate remedy.

[46] The Crown concedes that, if section 9 was violated by the decision to lodge Mr. Carrion-Munoz in the cells, then section 8 would have also have been violated by the subsequent strip search. However, the Crown submits that the decision to detain Mr. Carrion-Munoz was reasonable and not contrary to section 9. With respect to the independent basis for an alleged section 8 violation, the Crown submits that strip search was authorized and within the parameters set by the Supreme Court of Canada in R. v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449 (SCC) given the fact that the officer conducted an independent assessment of whether a strip search was required. Staff Sgt. Routh tried, but could not ensure Mr. Carrion-Munoz would be segregated from other prisoners that night. Only when other options proved unavailable was the strip search ordered. Finally, the Crown submits that, if there was a breach of the Charter, a stay would not be warranted and a reduction in sentence would amply remedy the situation.

[47] Accordingly, the following issues need to be resolved:

[48] Did P.C. Kim have reasonable and probably grounds to make the demand?

[49] Has the Crown proven that Mr. Carrion-Munoz's ability to operate a car was impaired by alcohol?

[50] Did the police decision to detain and/or strip search Mr. Carrion-Munoz following his breath tests violate his rights and, if so, what is the appropriate remedy.

Lawfulness of the Breath Demand

[51] Constable Kim had ample reasonable and probable grounds, subjectively and objectively, to believe that Mr. Carrion-Munoz's ability to operate a motor vehicle was impaired by alcohol at the time of the arrest and breath demand. There was no breach of the Charter in this regard.

[52] I accept Constable Kim's evidence concerning the manner in which the accused was driving. The accused does not dispute much of the driving evidence against him and, where he does dispute it, such as the cause of the collision, his evidence is confused and contradictory and I reject his evidence. The driving observed was significant enough to cause P.C. Kim to divert from his route home, to call 911 and to follow the accused's car. He would not have done that had he not observed that driving. Further, having just seen that driving, having seen Mr. Carrion-Munoz strike the centre median causing the flat and the hubcap to come off, seeing him continue driving, together with the strong smell of alcohol he observed when he approached him, all combine to objectively support his subjective belief that Mr. Carrion-Munoz's ability to operate a motor vehicle was impaired by alcohol. It was a lawful breath demand.

Impaired Charge

[53] Turning to whether I am satisfied beyond a reasonable doubt that Mr. Carrion-Munoz's ability to operate a motor vehicle was in fact impaired, I have a reasonable doubt on that issue in light of all of the evidence. Most of the evidence called, including the video introduced, causes me to have a doubt about whether Mr. Carrion-Munoz's ability was in fact impaired. Apart from the driving evidence, I am satisfied only that Mr. Carrion-Munoz exhibited a strong smell of alcohol on his breath. I am not persuaded that his speech was slurred or that he was unsteady in any way. The evidence in that regard was either never noted or was contradicted by other witnesses. Most of the evidence, other than the driving evidence, causes me to believe he was not impaired. The driving evidence and the strong odour cause me to believe he may have been impaired but, like the breath technician, I am satisfied that there was evidence of consumption but not satisfied beyond a reasonable doubt that Carrion-Munoz's ability was impaired. He will be found not guilty of that count.

[54] Turning to the Charter issues.

Overholding

[55] Mr. Carrion-Munoz was held in custody in cells for approximately nine hours after the breath tests were completed. The decision to detain him also resulted in a strip search in this case.

[56] I find that Staff Sgt. Routh's decision to detain Mr. Carrion-Munoz was based exclusively on the breath readings and Staff Sgt. Routh's opinion of the risks generally associated with those readings. I do not accept that it was due to any specific concern he observed relating to the accused nor do I accept that he was concerned that Carrion-Munoz may drive, or that he did not understand the release documents, or issues related to his work the following day. Staff Sgt. Routh has a policy of detaining people if their BAC is over 100 milligrams of alcohol per 100 millitres of blood. That was the only consideration. This finding is supported by P.C. Barecenas-Pineda's evidence that, following the breath tests, he was advised that the accused would be detained. It is supported by Staff Sgt. Routh's evidence that two other people were taking tests that night and he did not yet know if they too would be detained because he did not yet know their breath results. His decision to detain the accused until his readings came down was made prior to the accused being presented to Routh after the breath tests. There was no assessment of Mr. Carrion-Munoz's conduct, or level of comprehension whatever. The sole factor motivating his decision was the accused's blood alcohol level. While the BAC is a very important factor, and Staff Sgt. Routh's general concerns are legitimate, they are general and don't look to the particular circumstances of the accused at the station. The Courts have permitted detention until someone sobers up but have instructed the police to consider all the circumstances and not just the breath readings. Staff Sgt. Routh has a policy not to release anyone with a BAC over 100. He did not realistically consider any alternatives to lodging him that night. He was foreclosed to any alternatives in this case.

[57] The Criminal Code provides that the police, on reasonable grounds, can arrest and transport an individual to the police station for the purposes of completing the breath tests. Those tests were completed around 1:00 a.m. Once those tests are completed, unless the detainee is being held for a show cause hearing, he should have been released.

[58] Section 498 of the Criminal Code, provides that a police officer or officer in charge of the station shall release an individual such as Carrion-Munoz as soon as is practicable on one of various forms of release.

[59] Section 498(1.1) provides an exception to this duty where the officer believes on reasonable grounds

(1.1) (a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[60] The Crown submits that the detention in the cells was authorized by 498(1.1) in that it was necessary in the public interest.

[61] Whether detention for a few hours is characterized as an exception pursuant to 498(1.1) or is seen as a release as soon as practicable, as I just indicated, courts have permitted the detention in the cells after the completion of the breath tests. It may or may not be justified depending upon a consideration of all the circumstances. If someone is a potential danger to himself or others if released, and if a suitable safe alternative arrangements could not be made, then detention for a few hours may well be justified.

[62] In R. v. Coulter, [2000] O.J. No. 3452 (Ont. C.J.), an accused with a BAC of 210 mg per cent who was charged with impaired driving and over 80, was held in the police cells based on his high breath readings in order to sober up. He was also strip searched before being placed in the cells. He brought an application to stay the proceedings as a result of those two decisions. Duncan J. held that there was ample legal authority to permit the police to detain someone in the cells until he or she sobers up but held that police had to consider alternatives to detention such as whether a responsible adult was available. He also held that the officer in charge did not err in giving almost conclusive weight to the high breath readings in that case given the association between impairment and poor decision-making.

[63] Duncan J. held that the strip search violated the Charter as it was an overly intrusive act that was not justified on the basis of the remote possibility that Coulter could pass something to a cellmate. He held that that rather remote possibility was outweighed by the significant intrusion inherent in strip searches. He declined to order a stay of proceeding however as that remedy would be disproportionate. Justice Duncan's reasoning in relation to strip searching detainees held in police stations to sober up was referred to with approval by the Supreme Court of Canada in Golden.

[64] In the 2010 summary conviction appeal decision in R. v. Price, Justice Durno dealt with an issue similar to the case at Bar. Price had breath readings of 130 and was charged with "over 80". He was held for seven hours in the police cells until he sobered up notwithstanding that his wife was available to pick him up from the station. The decision to detain Price was based almost entirely on his breath readings. He sought a stay arguing that his detention violated section 9 of the Charter. The trial judge agreed that section 9 had been violated given that the officer focused too narrowly on the breath readings and failed to consider other circumstances. The trial judge declined to stay the proceedings noting that there were no other aggravating features such as, for example, a strip search. The trial judge imposed a sentence of time served as a remedy, which was six and a half hours in custody, below the minimum sentence prescribed by Parliament. That remedy appears to no longer be available in light of the Supreme Court of Canada's decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.).

[65] In dismissing Price's appeal, Justice Durno noted that remedies for Charter breaches must be flexible and contextual and balance competing interests. He noted that a stay is a drastic remedy in criminal law only to be granted in the clearest of cases. He cited R. v. Sapusak, [1998] O.J. 4148 (Ont. C.A.), where the Court of Appeal upheld the trial judge's decision not to stay proceedings where an accused with breath readings of 130 was held for 7 hours until his readings were below the legal limit. Durno J. agreed with the trial judge that a decision to detain based solely on breath readings would violate section 9 as it focuses too narrowly on one important factor. Officers ought to consider all the circumstances when deciding whether to delay releasing an accused. Some of those circumstances include whether the accused was charged with impaired driving, any criminal record, any outstanding charges, the detainee's level of comprehension, attitude, whether the car was impounded and whether a responsible adult was able to pick the accused up from the station. Only after considering all of the circumstances could the officer make an informed decision. However, while finding a breach of section 9, Durno J. agreed with the trial judge's that a stay of proceedings ought not be granted as the breach was unrelated to the offence and the gathering of evidence. Nasogaluak was not considered in Price.

[66] In R. v. Mok, 2012 ONCJ 291, [2012] O.J. 2117, an accused with a BAC of almost 300 who was extremely impaired, was detained in the cells until she sobered up. She was held for an additional nine hours. Her cell was monitored by officers watching her on CCTV. This included Mok's use of the toilet in her cell. Mok brought an application to stay the proceedings arguing that her detention violated section 7 and 9 of the Charter and that monitoring of her cell violated section 8.

[67] Justice West held that the detention was reasonable and that officers considered all the circumstances including many of the factors mentioned by Justice Durno in Price.

[68] Justice West found the monitoring of Mok's cell including Price's use of the toilet to be an invasion of her privacy. He noted that there was no basis to believe that Mok possessed any weapons or contraband or that she would be comingled with other prisoners. Given that, there was no reason to monitor her when she used the toilet. He found that to be a violation of section 8 of the Charter.

[69] Justice West was concerned that the practice of monitoring that occurred in Mok would continue and ordered the proceedings stayed. He went on to order that Mok enter into a common law peace bond on terms that she not be in the driver's seat of a car if she has any alcohol in her system and that she not operate a motor vehicle not equipped with an Interlock device. The remedy imposed by West J. attempted to balance the competing interests of society and the accused whose rights were violated.

[70] In this case, Staff Sgt. Routh's decision to detain Carrion-Munoz was based exclusively on the breath readings. The readings are a relevant and proper consideration. However, there was no assessment done of Carrion-Munoz specifically. He did not have a criminal record. He was cooperative throughout. None of the officers had any concerns about him at all. There was no suggestion that he did not understand what was occurring. He told the officer he had work in the morning and asked if someone could pick him up. The officer did not give any serious consideration to any of these circumstance beyond the blood alcohol readings. Like Price, his failure to consider anything other than the breath readings and the decision to hold the accused for, as it happens, a further nine hours, violated section 9 of the Charter.

[71] While it is possible that, had Staff Sgt. Routh considered all of the circumstances, he might have come to the same decision, in my view, had he considered anything beyond the readings, he would have released the accused. Most, if not all of the other factors would militate toward a decision to allow a responsible adult to pick up Carrion-Munoz that night. He had no record, no outstanding charges, was cooperative and was not exhibiting any lack of comprehension. A more informed and objective assessment would likely have led to his release.

[72] Given the Crown concession at the outset that, if I found a violation of section 9, she conceded a violation of section 8, I need not address the section 8 issues in detail. I would note however that there was nothing in this case to cause any officer to suspect that Mr. Carrion-Munoz was carrying weapons or contraband or that he might pass something to someone in an adjacent cell. All of the factors suggested otherwise. Further, he had already been subjected to a Level 1 and 2 search.

Remedy

[73] Turning now to the subject of remedy. The defence seeks a stay of proceedings arguing that the section 9 violation was compounded by the strip search which violated section 8. The Crown submits that a minimum sentence would be a reasonable remedy particularly given the elevated readings.

[74] In R. v. Zarinchang, 2010 ONCA 62, [2010] O.J. No. 286, the Ontario Court of Appeal summarized the test for a stay of proceedings as follows:

There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and no other remedy is reasonably capable of removing that prejudice.

In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

[75] There is no suggestion here that the violations affect the accused's fair trial interests. The essence of the issue is whether the decision to detain him and the resulting strip search that occurred contravenes fundamental notions of justice, which undermines the integrity of the judicial process and which, if not remedied by a stay, the prejudice flowing from the conduct would be perpetuated or aggravated through the conduct of a trial.

[76] Trial courts have battled with the issue of whether a stay should be granted for over holding or for unwarranted strip searches. The decisions have gone both ways. It is clear that each case ultimately depends upon its own facts and the context surrounding the violations.

[77] Most of the cases presented by counsel would not stay proceedings as a result of over holding. Where strip searches occur as a matter of a general policy, stays are more likely ordered. In Price, the trial judge noted that the overholding that occurred in that case was not aggravated by a strip search.

[78] The decision to detain due to elevated readings has been upheld by numerous courts. Where violations have been found, stays have not been imposed in many cases. The decision to detain in this case violated section 9 because it focussed too narrowly on one factor, albeit an important factor. Nonetheless, it was based on a highly relevant factor and was made by an officer who genuinely believed that releasing someone with elevated breath readings represented an undue risk. The approach of focussing just on the breath readings must end. Officers must seriously consider all the circumstances. It is a breach but that is the context in which it occurred.

[79] Further, not every unjustified strip search will justify a stay of proceedings. The case law is replete with decisions that rationally go both ways on the issue. It depends on all the circumstances. In this case, the officer made genuine efforts to avoid strip searching Carrion-Munoz. He tried to place him in an area where he would be separate from other prisoners but did not have room that night. He called other police divisions to see if they could lodge the accused but those too were full. Only once those options were exhausted, and the accused was going to be placed in a cell adjacent to another prisoner, was the decision made to order the strip search. This was not a blanket policy of strip searching all those who enter the cells. Efforts were made to avoid the strip search. While it still amounts to a violation of the Charter, the seriousness of the breach is mitigated somewhat.

[80] In the end, I am of the view that this is not one of the clearest of cases that ought to justify a stay of proceedings.

[81] Balancing the nature of the breaches, the circumstances underlying each decision the officers made, considering the nature of the offence including the fact that Carrion-Munoz was driving with a blood alcohol level of approximately 200 milligrams in 100 millilitres of blood on the 400 series highways resulting in an accident, it is my view that this is not one of the clearest of cases that ought to justify a stay of proceedings. An adequate remedy for the violations can occur at sentencing notwithstanding the aggravating circumstances of this case.

[82] Accordingly, the accused will be found not guilty of impaired operation but guilty of "over 80".

Released: August 28, 2012

Signed: "Justice H. Borenstein"