Court File and Parties
Court File No.: 11-1338 Orangeville
Date: May 7, 2013
Ontario Court of Justice
Central West Region
Between:
Her Majesty the Queen
— and —
Camara Steele
Before: Mr. Justice Richard H.K. Schwarzl
Heard on: August 2, 2012 and April 12, 2013
Reasons released on: May 7, 2013
Counsel:
Mr. Robert Fetterly, Q.C. — for the Crown
Mr. Douglas Lent — for the Accused
SCHWARZL, J.:
1.0: INTRODUCTION
[1] In the early morning hours of October 29, 2011 Mr. Camara Steele was found behind the wheel of his car that was stopped on the side of the road in Caledon. After being investigated by police he took and failed a roadside screening test. He was then taken to a police station where breath tests showed that his blood alcohol concentration was over the legal limit. As a result, Mr. Steele was charged with the offence of driving with excess blood alcohol contrary to section 253(1)(b) of the Criminal Code. At the trial, the only issues revolved around alleged breaches of two of Mr. Steele's Charter rights.
2.0: ISSUES
[2] The first issue is whether a proper screening demand was made by the police. If not, the defence argues that the breath tests results ought to be excluded as flowing from a violation of Mr. Steele's right to be free from unreasonable searches and seizures as guaranteed by section 8 of the Canadian Charter of Rights and Freedoms ("Charter"). The second issue is whether Mr. Steele's right to be free from arbitrary detention set out in section 9 of the Charter was breached by the police not releasing him from custody until four hours after the investigation had been completed. If so, Mr. Steele seeks a stay of proceedings as the remedy.
3.0: FACTS
[3] At 4:45 a.m. Mr. Steele stopped his car on the side of King Street in Caledon to check his global positioning satellite map because he got lost driving home to Mississauga from Kitchener. Constables Lemcke and McCallum were on routine patrol when they happened to see Mr. Steele's car. They stopped to see if he needed any assistance because his four-way flashers were on. As they pulled in behind him, Mr. Steele unexpectedly drove forward a very short distance before halting, an act P.C. McCallum called bizarre. Mr. Steele testified that P.C. McCallum drove the police car and that P.C. Lemcke was the passenger, which was the reverse of the officers' evidence. I prefer the evidence of the officers because they were consistent with each other and, unlike Mr. Steele, they had not been drinking alcohol nor suffering from confusion during the relevant times.
[4] Mr. Steele was alone and occupied the driver's seat of his idling vehicle. He appeared somewhat confused to the officers, consistent with Mr. Steele's evidence that he was lost. The police observed the odour of alcohol on Mr. Steele's breath. At around 4:47 a.m., and after she told Mr. Steele that she suspected that he had been drinking, P.C. McCallum made a screening demand. She took him back to her car and administered the screening test. P.C. Lemcke was not entirely sure whether he or his partner had the approved screening device but thought it was P.C. McCallum because "she made the screening demand." Mr. Steele said it was P.C. Lemcke who made the demand and administered the screening test while P.C. McCallum encouraged him to provide a suitable sample. Taking the evidence as a whole I find that it was P.C. McCallum who made and executed the screening demand and that both officers encouraged Mr. Steele in his efforts to provide a suitable sample. I find that Mr. Steele was wrong about this.
[5] At 5:10 a.m., and on the fifteenth opportunity, Mr. Steele provided a suitable sample into the approved screening device. He failed the test and was promptly arrested by P.C. McCallum with the offence of operating a motor vehicle with more than the legal limit of alcohol in his body. Both officers agreed Mr. Steele did not appear impaired to drive, otherwise he would have been charged with impaired driving.
[6] P.C. McCallum handcuffed Mr. Steele upon his arrest. P.C. Lemcke said it was highly unlikely that Mr. Steele was cuffed before then. Mr. Steele, on the other hand, said that he was handcuffed prior to, and throughout, the roadside screening procedure. I don't believe him. The police had no reason to handcuff Mr. Steele before concluding that he had committed a crime. Mr. Steele was described as genuinely trying to provide suitable samples. There was no evidence that Mr. Steele was a security risk or displayed any aggression towards the police. In other words, Mr. Steele was nothing if not cooperative. Cuffing him was simply not necessary during the testing phase of the investigation.
[7] At 5:17 a.m. P.C. McCallum made a lawful breath demand to Mr. Steele. A couple of minutes later the police left the scene with Mr. Steele and drove him to the Caledon East O.P.P. office for breath tests. They arrived at the station at 5:31 a.m. After being booked Mr. Steele was turned over the qualified technician, P.C. Williams, at 5:47 a.m.
[8] Mr. Steele provided two suitable samples of his breath directly into the approved instrument operated by the qualified technician. The first sample was taken an analyzed at 5:59 a.m. with a blood alcohol concentration of 130 milligrams of alcohol per hundred millilitres of blood. The second sample was taken an analyzed at 6:20 a.m. with a blood alcohol concentration of 130 milligrams of alcohol per hundred millilitres of blood. In between the two breath tests, the police day shift came on duty at 6:00 a.m.
[9] At 6:24 a.m. Mr. Steele was escorted by P.C. Lemcke and one of the day officers, P.C. Mournahan, from the breath room to the Caledon East cells. While taking him to the cells, P.C. Mournahan observed that Mr. Steele appeared depressed because he told her that he was a disgrace. Right after lodging him, P.C. Mournahan asked Mr. Steele if he had someone who could come and pick him up. Mr. Steele told her at that time that he didn't have anyone.
[10] At 6:38 a.m. Mr. Steele asked P.C. Mournahan to call his parents, Sharon and Howard Steele and at 6:42 a.m. the officer called them. P.C. Mournahan spoke with Mrs. Steele and told her where her son was and that he wanted to be picked up. Mrs. Steele told the officer she would call back after making arrangements. At 6:58 a.m. Mrs. Steele called the police station and asked P.C. Mournahan were the car was. The officer told her the location and phone number of the tow yard. At 7:04 a.m. Mrs. Steele called the station again and told P.C. Mournahan that she wasn't coming. Mrs. Steele told the officer to have her son take a cab home because he was a big boy and it was easier that way.
[11] After the final call from Mrs. Steele, the officer told him that his mother was not coming. No one asked Mr. Steele if there was anyone else besides his parents who could come for him. Mr. Steele had other family and friends he could have called, but agreed that all of them would be an hour or two driving distance away. He also agreed he never raised any of their names with the police, despite their general requests for names. Mrs. Steele testified that had she been told by the police they would not release her son unless someone came for him, she would have sent her husband or another family member. I do not believe Mrs. Steele because it is at odds with her statement to the police that her son was big and could take a taxi home. It is obvious that she wanted her son to know that he was responsible to find his own way home.
[12] Mr. Steele testified that after being told his mother was not coming, he laid down and slept.
[13] Both P.C. Lemcke and McCallum stayed beyond the end of their shift to complete their investigation of Mr. Steele. Once all the necessary paperwork relating to the charge had been completed, P.C. Lemcke served copies of them on Mr. Steele at 7:26 a.m. P.C. Lemcke did not release Mr. Steele immediately thereafter due to the test results and because there was no one to pick him up. P.C. Lemcke had asked Mr. Steele to name someone who could come for him but Mr. Steele did not provide any names to him. P.C. Lemcke had concerns for Mr. Steele's safety if he chose to walk home to Mississauga as the roads were quite busy that time of day. As the officer noted in his general report "Steele uncooperative in getting someone to pick him up so held until sobered up."
[14] Contrary to the evidence of P.C. Mournahan and P.C. Lemcke, each of whom made independent inquiries of Mr. Steele about contacting someone for a ride, Mr. Steele testified that no one asked him about that. His evidence is that he was the one who initiated the idea of calling for a ride. I prefer the evidence of the police over that of Mr. Steele. The officers acted independently of one another, each making direct inquiries of Mr. Steele at separate times. Mr. Steele's memory of the events appears to have been adversely effected by the confusion he was suffering at the time, doubtless in large measure because of the significant amount of alcohol in his system.
[15] P.C. Lemcke agreed with counsel that Mr. Steele comprehended all of the documents he had been served at 7:26 a.m.; that he had no related criminal record; that he had no outstanding similar charges; and that he was not impaired. The officer also testified that after serving the papers neither he nor any other officer to his knowledge assessed Mr. Steele's sobriety before ending his shift. P.C. Lemcke stated he did not check to see if Mr. Steele had money for a taxi, but expressed the concern that even if he did he would be apprehensive that Mr. Steele would only take a short ride to save money then try to walk the rest of the way home.
[16] P.C. McCallum had concerns about releasing Mr. Steele at 7:30 a.m. because he still seemed disoriented. However she did not recall checking on his condition prior to going off shift at around 8:00 a.m. She agreed that it is not unusual to send arrestees home by taxi, but she did not state that this is done for detainees still under the influence of alcohol or otherwise disoriented. She further agreed that she made no inquiries of Mr. Steele about getting him safely home because it was not her duty to make the decision about his release.
[17] P.C. Mournhan saw Mr. Steele at 7:30 a.m. and noted the strong odour of alcohol on his breath. She also observed that he was unsteady on his feet, an observation shared by no other officer, but not inconsistent with the observations of other officers regarding his disorientation and confusion. P.C. Mournahan testified that alcohol related arrestees cannot be released until sober unless a responsible person comes for them. Therefore, since no one was coming, she was not prepared to release Mr. Steele until he was sober to ensure his safety. P.C. Mournhan was under the mistaken impression that Mr. Steele had been charged with impaired driving as well as driving with excess blood alcohol. She estimated that he would be released after "a few more hours" given all of the circumstances as she understood them.
[18] Both P.C. Lemcke and P.C. McCallum left work around 8:00 a.m., leaving the matter of Mr. Steele's release up to the dayshift Officer in Charge who was P.C. Sarah Crowhurst. She came on duty at 6:00 a.m. at the Bolton office of the Caledon O.P.P. When she arrived, the nightshift supervisor told her that there were two prisoners in the cells of the Bolton office, one of whom was a drunk driver. She was told that the drunk driver had been arrested at 2:20 a.m. and could be released at 10:00 a.m. because there was no one to pick him up. She said that as a matter of course, the police will not release drink/drive arrestees until they are sober unless a responsible person comes forward.
[19] P.C. Crowhurst described a very hectic morning shift that required both her and her platoon to be out of the office tending to many urgent calls, one of which was a very serious matter involving an attempted suicide. It was not until 10:00 a.m. that P.C. Crowhurst was able to get back to the Bolton office to deal with her administrative duties there. Although she was at the station from ten o'clock onward, she still had to direct members of her platoon to further calls. P.C. Crowhurst released the impaired driving prisoner (not Mr. Steele) at 10:11 a.m. because he appeared sober at that time.
[20] With respect to Mr. Steele, P.C. Crowhurst wasn't sure when she first became aware of him but she knew he wasn't in the Bolton detachment when she came on shift. This is confirmed by P.C. Mournahan who said that she drove Mr. Steele to Bolton only after 8:00 a.m. Mr. Steele was transferred because there were no cell guards in Caledon East to look after him. P.C. Crowhurst was vaguely aware that the Caledon East platoon nightshift had dealt with a driver near the end of their shift. She did not know that Mr. Steele had been transferred to Bolton until the cells guard showed her his prisoner log. This is not surprising given how unusually busy she was. P.C. Crowhurst released Mr. Steele on a promise to appear at 11:18 a.m. and she let him leave via taxi. P.C. Crowhurst did not think she could have released Mr. Steele any earlier than she did due to a lack of manpower caused by the number and nature of service calls she and her platoon faced that morning.
[21] At no time between 10:00 a.m. and 11:18 a.m. did P.C. Crowhurst personally check Mr. Steele's sobriety. Nor did she cause it to be checked. However, there was a cell guard in Bolton whose duty it was to monitor prisoners at all times.
[22] Mr. Steele testified that even though his parents didn't come for him, he had money for a cab and was ready to take a taxi home at any time. He said the police never asked him if there were people beside his parents they could call. He said he was not fed and that no one checked on him. However, there is evidence that he was being watched by a cell guard at Bolton and by his own account he was sleeping while in police custody.
4.0: ISSUES
4.1: Was Mr. Steele's section 8 Charter right breached?
[23] The defence argues that in assessing all of the evidence there exists a state of reasonable doubt as to (1) which officer formed the grounds to make a screening demand, (2) which officer made the screening demand, and (3) which officer executed the demand. Further the defence submits that by testifying she told Mr. Steele only that she had a suspicion that he had been drinking prior to her making the demand, P.C. McCallum did not meet the requirements of section 254(2) of the Criminal Code. That section states that the officer must not only suspect the subject has been drinking, but that what they were drinking was alcohol, and further that the person had been operating or were in care or control of a motor vehicle while the alcohol was in their body.
[24] The Crown submits that while there was some conflict in the evidence, everyone – the police and Mr. Steele himself – testified that one of the officers made the screening demand that Mr. Steele complied with. The Crown submits that the screening demand was based on proper grounds.
[25] As is clear from my finding of fact, I place very little weight on Mr. Steele's recollection of events. I found P.C. McCallum to be a reliable and credible witness and I accept her rendition of events without hesitation. While P.C. Lemcke was not the strongest of witnesses, he never contradicted his partner's evidence. I find it was P.C. McCallum who formed the grounds to make the screening demand, that she was the one who made it, and that she was the one administered the screening test with P.C. Lemcke's assistance and support.
[26] With respect to the screening demand, there is no requirement that the demanding police officer use particular words or specific language to reflect his or her reasonable suspicion that a person had alcohol in his or her body while operating or in care or control of a motor vehicle. The officer need not express his or her suspicion in the exact words of section 254(2). In R. v. Long, [1999] O.J. No. 364 (Gen. Div.), Whealy J. stated at paragraph 13:
The words "reasonable suspicion" are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion.
[27] The court may infer from circumstantial evidence that an officer had the requisite reasonable suspicion to make a screening demand. There is no one form of indicia that is a prerequisite to such an inference being drawn and it is the collective impact of all of the evidence upon a reasonable observer, including observations and admissions, that can establish the reasonableness of a suspicion on an objective basis: R. v. Correia, [2000] O.J. No. 3100 (Sup. Ct.); R. v. Hancock, [2001] O.J. No. 5007 (O.C.J.)
[28] One cannot conclude that the only reason P.C. McCallum made the screening demand was because she suspected Mr. Steele had been drinking. To do so would be to ignore all of the other circumstances known her, including that it was very early in the morning; that Mr. Steele seemed confused; that Mr. Steele's breath smelled of alcohol; and that he was behind the wheel of a car which she had seen him move peculiarly when she and her partner arrived. From listening to her testify, it is clear to me that P.C. McCallum understood the nature and basis of her duties in making screening demands and administering roadside breath tests. On looking at all the evidence, and no one piece of it in isolation, I find that when P.C. McCallum made the screening demand she reasonably suspected that Mr. Steele had been driving, or was in care or control, of a motor vehicle with alcohol in his body.
[29] I find that Mr. Steele was not subjected to an unlawful search and seizure by the police. His section 8 Charter breach application is dismissed. The breath test results shall not be excluded from the evidence.
4.2: Was Mr. Steele's section 9 Charter right violated?
[30] The defence submits that Mr. Steele was illegally detained by the police when they failed to release him at 7:30 a.m. after serving him with the associated paperwork. They argue the police made a number of errors that taken cumulatively violated Mr. Steele's rights including (a) the police should have sought out someone else after his parents refused to pick him up, (b) Mr. Steele was not impaired, (c) he had no record and no outstanding charges, (d) his car had been taken from him, (e) his level of awareness and comprehension was good, (f) he had enough money to take a cab home at any time, and (g) no one, especially the officer in charge of the Bolton station, made any efforts at any time to assess his sobriety.
[31] The defence submits that taking all of the circumstances into account, Mr. Steele "fell through the cracks" and was ignored by the police after he arrived in Bolton after 8:00 a.m. They submit that the police decision of prioritizing calls is no excuse for not releasing a detainee who should have been sent home without delay. They submit that there was no reason why Mr. Steele was not released at the same time as the other drink/drive prisoner at 10:10 a.m. The defence submits the only appropriate remedy is a stay of proceedings.
[32] The Crown submits the police did not arbitrarily detain Mr. Steele because the Caledon O.P.P. policy of not releasing drink/drive arrestees until they are either sober enough to be considered safe or until a responsible person fetches them is reasonable. The Crown further submits that the police were genuinely and reasonably concerned about Mr. Steele's safety given all of the circumstances.
[33] The Crown agrees with the defence that Mr. Steele appeared to "fall between the cracks." However, they submit that not only was this excusable in light of the police having to respond to significant calls for immediate service but that the time he spent in those cracks was very short and should not attract a finding of a breach. Lastly, the Crown submits that if Mr. Steele's section 9 Charter right was violated, a stay of proceedings in this case is an inappropriate remedy.
[34] Section 9 of the Charter guarantees that everyone has the right to be free from arbitrary detention. The burden is upon the applicant to present a prima facie case that calls for an answer by the Crown. The length of the detention itself may establish a prima facie case where the duration is considerable: R. v. Iseler (2004), 190 C.C.C. (3d) 11 (Ont. C.A.) at para 22. Where the length of the post-investigative detention is shorter, a breach may be established by other relevant circumstances.
[35] Section 498 of the Criminal Code mandates the release of an arrested person as soon as practicable unless the police believe on reasonable grounds that it is necessary in the public interest that the person be detained. Reasonable public interest grounds include the need to detain charged intoxicated persons until they are sober and safe to be released: R. v. Sapusak, [1998] O.J. No. 3299; R. v. Coulter, [2000] O.J. No. 3452 (O.C.J.), affirmed [2001] O.J. No. 5608 (S.C.J.); R. v. Padda, [2003] O.J. No. 5502 (O.C.J.); R. v. Gaudette, [2005] O.J. No. 2399 (O.C.J.), reversed for other reasons, [2006] O.J. No. 3732 (S.C.J.); R. v. Kisil, 2009 ONCJ 424, [2009] O.J. No. 3821 (O.C.J.); R. v. Prentice, 2009 ONCJ 708, [2009] O.J. No 6001 (O.C.J.); R. v. Chakhov, [2013] O.J. No. 1897 (O.C.J.).
[36] A police policy that looks to the level of intoxication of the detainee is a reasonable component in the assessment of when to release a detainee: [R. v. Handley (unreported summary conviction appeal endorsement of Langdon, SCJ April 5, 1993)]; R. v. Coulter, [2001] O.J. No. 5608 (S.C.J.); R. v. Campbell, [1995] O.J. No. 2975 (S.C.J.); R. v. McGovern, [2007] O.J. No. 743; and R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.). However, relying solely on the blood alcohol level is too narrow a focus. The releasing officer must take into account all of the circumstances, including but not limited to, the readings: R. v. Price, supra, at ¶ 93; R. v. De Lima, [2010] O.J. No. 2673 (O.C.J.).
[37] In this case, the breath test procedure was complete at 6:20 a.m. but the investigation was not over until the relevant documentation was served on Mr. Steele at 7:26 a.m. Given that he was released at 11:18 am. Mr. Steele's total post-offence detention was for just over three and three-quarter hours. The police immediately began to facilitate Mr. Steele's release right after the second breath test at 6:20 a.m. Two officers made independent efforts separated by an hour from each other to secure a name of a responsible person from Mr. Steele. When first asked by P.C. Mournahan for names of responsible persons prior to 6:30 a.m., Mr. Steele declined to provide any. He later changed his mind and gave P.C. Mournahan his parents' names. After several calls with Mr. Steele's mother it was made clear to both the officer and Mr. Steele that his parents were not coming. When asked by P.C. Lemcke shortly after 7:26 a.m. for names of people to call for a ride, Mr. Steele declined, even though there was no reason not to. It was, or should have been, apparent to Mr. Steele that the police were trying to arrange for his release to any responsible person.
[38] Despite the desire and efforts by the police to send him home with a responsible person Mr. Steele remained mute except for naming his parents. His decision to not offer names meant the police were left with the decision to either (a) release him right away on his own, whether by cab or on foot, or (b) keep him until he was in a fit state. The O.P.P. policy of not releasing those under the influence of alcohol until either a responsible person comes for them or they sober up is entirely reasonable and consistent with their duties set out in the Criminal Code.
[39] In this case, great emphasis was made by the defence on the fact that Mr. Steele did not appear impaired to drive. The presence of signs of impairment is important to consider when deciding whether a detainee should continue to be held, but the absence of outward signs of impairment is largely irrelevant. Many individuals do not show outward signs of impairment but this does not mean they are not under the influence of alcohol or that they do not continue to pose a risk to the public: R. v. Key, [2011] O.J. No. 5972 (O.C.J.) at ¶ 81. Even though Mr. Steele was not patently drunk, he was clearly under the influence of alcohol to every officer who actually dealt with him from 4:45 a.m. onward. These officers did not merely rely on the breath readings, but also on his appearance, demeanour and statements. His frequent confusion, his napping at the station, his significant blood alcohol concentration, his poor decision to not identify anyone other than his parents to call for a ride, and his inaccurate memory of events at trial all speak to the influence alcohol had on him at the time. I find that in all of the circumstances the police had legitimate safety concerns and that they were correct in not letting him leave the station on his own until he either had a ride from a responsible person or he was in a safe condition.
[40] The police acted reasonably in detaining Mr. Steele until the time of his release. It is reasonable the police did not want to let Mr. Steele take a cab until he was sober. Their speculative rationale that he might only take a short ride to save money and walk the rest of way reflects their concern that people under the influence of alcohol don't always make sensible or safe choices. In this case, given Mr. Steele's readings, his confusion, his self-condemnation by calling himself a disgrace, his depressed mood, and his unwillingness to provide further names, I find no fault in the police not allowing him to take a cab earlier.
[41] Mr. Steele could not be properly cared for at the Caledon East office. This is why he was brought to Bolton, where there was a guard on duty to look after him. The day was an especially hectic one for the officer in charge of the Bolton station. Due to obligations which took her away from the station, she was not able to return and release any prisoners, including Mr. Steele, until after 10:00 a.m. Therefore, the earliest reasonable time of release for Mr. Steele would have been at 10:11 a.m. when the other drink/drive prisoner was released. I accept P.C. Crowhurst's testimony that Mr. Steele's release was delayed because of manpower shortages caused by unanticipated service calls that required immediate attention.
[42] I do not find any laxity or negligence by the police. They simply could not do all things at once given the situation they faced that morning. Somebody had to wait. The officers properly made service calls their first priority. I disagree with both counsel that Mr. Steele "slipped between the cracks" in Bolton. At worst, Mr. Steele had to stay just over an hour longer than necessary. While it was possible that Mr. Steele could have been released shortly after 10:10, this does not mean the police violated their duties between that time and 11:18 a.m. While inconvenient, Mr. Steele's continued detention between 10:00 a.m. and his release was hardly a violation of his constitutional rights in that nothing about the police conduct was despotic, tyrannical, capricious or arbitrary.
[43] In the totality of the circumstances, I find that Mr. Steele was released as soon as practicable within the meaning of section 498 of the Criminal Code. Mr. Steele has failed to establish a breach of his section 9 Charter rights.
[44] If I am wrong and there was a breach of Mr. Steele's section 9 Charter right, I would not grant a stay of proceedings. The test for a stay is set out in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (C.A.) at ¶ 57 as follows:
(1) 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.
(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:
(i) 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
(ii) no other remedy is reasonably capable of removing that prejudice.
(3) 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.
[45] If there was a violation, it did not impact in any way on the fairness of Mr. Steele's trial. The delay in his release did not involve any intrusion into his bodily integrity, there was no invasion into his privacy, he was not ignored but taken to a place where he could be, and was, monitored by a guard. Although he was not fed, he appears to have slept much of the time. Furthermore, if there was a breach it did not produce or detect any incriminating evidence; the police did not act in bad faith but rather in the legitimate and real interest of his and public safety; any breach was neither causally or temporally connected with the offence; and drink/drive offences are very serious and there is a large public interest in trying such cases on their merits. This is not a case where the high threshold for a stay of proceedings has been met.
[46] If Mr. Steele's section 9 Charter right had been infringed in these circumstances, the only appropriate remedy would be a consideration of an amelioration of sentence consistent with the principles set out by the Supreme Court in R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6. See for example, R. v. Price, supra; R. v. Carrion-Munoz, [2012] O.J. No. 4030 (O.C.J.); R. v. O'Neill, 2013 ONCJ 216, [2013] O.J. No. 1899 (O.C.J.).
[47] For all of these reasons, Mr. Steele's section 9 Charter application is dismissed. Even if I had allowed it, a stay of proceedings would not have been granted.
5.0: CONCLUSION
[48] The defence Charter applications are dismissed. The crown has proven Mr. Steele's guilt beyond a reasonable doubt. A verdict of guilty will be recorded on the sole charge of driving with excess alcohol.
Original Signed by Justice R.H.K. Schwarzl
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice