Court File and Parties

Court File No.: 12-7317 Date: July 10, 2013 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Charles Hume

Before: Justice Richard H.K. Schwarzl

Heard: June 12, 2013

Reasons Released: July 10, 2013

Counsel:

• Mr. Christopher Presswood, for the Crown
• Mr. Douglas Lent, for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] On June 3, 2012 Mr. Charles Hume drove his car out of the parking lot of McGuire's Bar in Brampton. He was pulled over by P.C. Edward Nicholson who, after conducting an investigation at the roadside, administered a screening test for alcohol which Mr. Hume failed. Consequently, Mr. Hume was taken to a police station where two suitable samples of his breath were analyzed by P.C. Dan Scobie, a qualified technician who operated an Intoxilyzer 8000C approved instrument. The two tests yielded results over the legal limit.

[2] At the trial on the sole count of Driving with Excess Blood Alcohol contrary to section 253(1)(b) of the Criminal Code, both P.C. Nicholson and P.C. Scobie testified for the prosecution. No evidence was led by the defence.

[3] There are only two issues for me to decide. The first issue is whether Mr. Hume's right to be free from arbitrary detention guaranteed by section 9 of the Canadian Charter of Rights and Freedoms ("the Charter") was breached by P.C. Nicholson. The second issue is whether Mr. Hume's right to speak to a lawyer in private as guaranteed by section 10(b) of the Charter was breached by the police installing and monitoring a video camera in the station's phone room. If either one or both rights were violated, the defence seeks the exclusion of the breath test results from the evidence.

2.0: FACTS

[4] P.C. Edward Nicholson is a veteran police officer. He has enormous experience dealing with drink/drive cases both as a principal investigator and as a qualified technician. At the time of this matter, he was assigned to the Peel Police Road Safety Services Unit ("RSSU") spending most of his work time investigating possible drunk drivers.

[5] For some time prior to June 3, 2012 the Peel Regional Police RSSU had been collecting region-wide data concerning licensed establishments from which drivers had been charged with alcohol related offences. This data collection project is known as the Last Drink Programme ("LDP"). Each month, the statistics are collated and are distributed, or made available, to police officers to assist them in focussing their investigations of possible impaired drivers on notorious bars, taverns, and restaurants. The data identifying bars is gathered by asking those charged with alcohol related offences where they had been drinking prior to being investigated. In addition to its role as an investigative tool, the LDP data is also regularly given over to provincial licensing authorities to assist them with eligibility and enforcement of liquor licences in the region.

[6] As of June, 2012 McGuire's Bar was near the top of the last LDP list. Armed with this information P.C. Nicholson drove into McGuire's parking lot at around 5:17 p.m. on June 3, 2012. Within a minute, he saw Mr. Hume drive out of the tavern's parking lot and onto the public highway. P.C. Nicholson followed Mr. Hume for a minute or so at which time he activated his lights and sirens so that he could stop the car and check the driver's sobriety. Mr. Hume did not pull over immediately, stopping only after completing a turn onto a side street.

[7] At 5:19 p.m. P.C. Nicholson strode to the driver's window and spoke with Mr. Hume, who was the driver and sole occupant. Mr. Hume's breath smelled of alcohol, his face was flushed, his eyes were bloodshot, and he admitted to drinking beer at the bar. At this time P.C. Nicholson reasonably suspected that Mr. Hume was operating a motor vehicle with alcohol in his body and escorted Mr. Hume to his cruiser to conduct a screening test. At the cruiser, P.C. Nicholson made a demand pursuant to section 254(2) of the Criminal Code.

[8] P.C. Nicholson based his demand on all of the following:

• The LDP statistics regarding McGuire's Bar;
• Watching Mr. Hume drive away from the bar;
• Observing that Mr. Hume did not pull over immediately when signalled to do so;
• The odour of alcohol on Mr. Hume's breath;
• Mr. Hume's flushed face and bloodshot eyes; and
• Mr. Hume's admission to consuming alcohol prior to driving.

[9] After making a screening demand at 5:21 p.m. P.C. Nicholson asked Mr. Hume when he finished his last drink. Based on his answer, and in order to avoid a "false positive" result, the officer did not administer the test until 5:29 p.m. At that time, Mr. Hume provided a suitable sample directly into a properly operated and operating approved screening device. Mr. Hume failed the test and he was immediately thereafter arrested for the offence before the court.

[10] Following his arrest, Mr. Hume was given a breath demand pursuant to section 254(3) of the Criminal Code. Mr. Hume was also given his rights to counsel, which he elected to exercise.

[11] At 5:47 p.m. and after completing his duties at the roadside, P.C. Nicholson drove Mr. Hume to the police station where P.C. Nicholson telephoned duty counsel. At 6:24 p.m. duty counsel called the station at which time Mr. Hume was brought to a room equipped with a wall-mounted telephone in the back corner. The only other furnishing is a single chair next to the phone. A video camera is affixed to the ceiling corner inside the phone room diagonally opposite the telephone. A live video feed from the phone room is sent to a monitor inside the station where uniformed and other police employees can watch the activities of detained persons while they are in the phone room. In addition to being able to watch in real time, the activities inside the phone room are recorded, preserved, and – where charges are laid – disclosed.

[12] There is no microphone inside the phone room nor is there a microphone that is part of, or ancillary to, the camera itself. Accordingly there is no way to monitor to what is being said in the phone room. Further, there is no capacity to record what is being said by either counsel or the detainee inside the phone room.

[13] The phone room video was produced and filed as a trial exhibit. The focus of the camera is of the widest field of view inside the room, thereby placing the viewer as far away as possible from Mr. Hume. The camera never "zoomed in" on Mr. Hume, making it difficult to discern any details of his head or face while he was using the phone. In watching the video, one can see Mr. Hume enter the room and head straight to the back where the phone and chair are located. He picked up the phone and began talking. He remained standing throughout. At all times while using the phone his back was to the door and the camera. When he was finished, he hung up the phone and headed for the door. At no time did he look at, or gesture toward, the camera. Mr. Hume did not appear to be aware of the camera.

[14] Mr. Hume finished his phone call with duty counsel at 6:30 p.m. at which time he was brought to the breath room and turned over to P.C. Scobie for breath testing. The first test was taken and analyzed at 6:34 p.m. resulting in a blood alcohol concentration of 120 milligrams of alcohol per one hundred millilitres of blood. The second test was taken and analyzed at 6:57 p.m. resulting in a blood alcohol concentration of 110 milligrams of alcohol per one hundred millilitres of blood.

[15] At 7:16 p.m. Mr. Hume was served with a Notice of Intention to Produce and a Certificate of a Qualified Technician. Mr. Hume was released from the station at 7:45 p.m.

3.0: ISSUES

3.1: Was Mr. Hume's section 9 Charter right breached?

3.1.1: Positions of the Parties

[16] The defence position is that reliance by police officers on the Peel Police Last Drink Programme perforce incites police to stop motorists who would otherwise not necessarily be stopped. The defence submitted that the statistics are neither collected nor analyzed scientifically, thereby creating an unjustified and untested bias. In essence, the position of the defence is that by relying in whole or in part on the LDP statistics, P.C. Nicholson's stop of Mr. Hume was constitutionally impermissible because they argue it unfairly targeted the narrowest spectrum of drivers.

[17] In support of their position, the defence relied upon the unreported decision of R. v. Ernest Farquharson, (March 14, 2013) Brampton 12-1780 (O.C.J.). In that case, the investigating officer decided to stop motorists leaving a liquor store. After referencing Brown v. Durham Regional Police Force, 43 O.R. (3d) 223 (C.A.) the learned trial judge ruled that focussing on drivers coming from an unlicensed location was an unjustifiable reason to stop a car to check the driver's sobriety because, absent a traffic violation, it was unlikely that motorists would have been drinking there. Having found a breach of the defendant's section 9 Charter right, the learned trial judge excluded the breath test results.

[18] The Crown submitted that the case at bar is factually distinguished from Farquharson because in this case the police were targeting drivers coming out of a place where it was reasonable to believe the drivers had been drinking, especially considering that the principal purpose of a licensed establishment like McGuire's Bar is to serve alcohol to its patrons, many of whom drive to get there. In addition, the Crown relied upon the summary conviction appeal case of R. v. Del Ben, [2000] O.J. No. 812 (S.C.J.). In that case, the learned appeal justice found that targeting motorists coming from a high-incidence bar was lawful because the stop was directed towards investigation of possible drunk drivers and for no ulterior or improper purpose.

3.1.2: Analysis

[19] As an appellate decision I am bound to follow the ratio decidendi of Del Ben. No authority at the same or higher level as Del Ben was presented to contradict it. What is more, I am in agreement with its finding which are that:

[P]olice are, in carrying out their responsibilities under either Section 48(1) or 216(1) of the Ontario Highway Traffic Act, entitled to target specific locations provided that, when a stop occurs, that stop is based on proper purposes related to sobriety and/or highway traffic concerns founded in appropriate statutory authority.

Such stops may be without articulable cause, and, even where the police have "no grounds to reasonably suspect that the [driver] had committed, was committing, or was about to commit a criminal offence before he was required to stop ... The only reason for the random stop [may be] the fact [the driver] happened to be [at] a location where the police believe there was a high incidence of drinking and driving".

As such, there is no "safe haven" or immunity provided to drivers who are stopped simply because the officer may be seen to be "cherry picking", or targeting premises.

Although I have concluded that Judge (now Justice) Fontana was in error in the result in Shay, [1996] O.J. No. 1091 (Prov. Ct.) he, correctly in my view, noted that it is reasonable that:

If you are going to try to catch people drinking and driving, or to discourage them from drinking and driving, you set up where that sort of activity is going on.

Having regard to the potential for abuse of the right of police to conduct spot checks under the H.T.A., judges are acutely conscious of the need to evaluate the reasons and selection criteria for such stops.

[20] The summary conviction appeal case of R. v. Cormack, [2001] O.J. No. 4275 (S.C.J.) reached the same conclusion as that in Del Ben, supra. In Cormack, the investigating officer said at trial that he stopped the driver as part of a "blitz" he conducted because the area was populated with licensed premises. Whereas the trial judge found this reason to be a Charter violation and excluded the breath tests, the summary conviction appeal justice disagreed and found no section 9 Charter breach. After distinguishing Shay, referred to in Del Ben, supra as being inapplicable because it predated Brown v. Durham Regional Police Force, the court in Cormack held that:

…. There is no issue here but that the officer ran his blitz in the area that he did because he was concerned that there was a high likelihood of impaired drivers resulting from the presence of licensed establishments. It would be hard to think of criteria that would be more related to highway safety concerns than those.

Further, the distinction made by the trial judge, that had the stop been directly outside the parking lot of licensed premises he would have ruled the other way, is one that cannot be made in light of the views expressed in Ladouceur and in Brown. As Mr. Justice Doherty said in Brown, relying on Ladouceur, as I have quoted it above, section 216(1) of the Highway Traffic Act authorizes arbitrary stops and arbitrariness alone will not take the stop outside of its purview. It is not the location of the stop but the reason for it that determines whether it is lawful.

[21] In R. v. Hopkins, [2011] O.J. No. 3144 I reached a similar conclusion that reached in both Del Ben and Cormack. In Hopkins the investigating officer decided to stop drivers leaving a particular bar in Mississauga just before New Year's. In concluding that there was no Charter violation, I held that:

The targeting of the driving population coming out of bars over the holiday season is entirely consistent with the purpose of RIDE programs, which is to detect, deter, and reduce drunk driving. By concentrating on a location such as a bar where there is a higher probability of detecting drunk drivers, P.C. Haramis was not only performing his lawful duty but he was also minimizing the inconvenience to the general motoring public. In other words, by zeroing in on those leaving drinking establishments, the officer's conduct was far less random than setting up at an intersection and stopping all drivers.

[22] In the case at bar, the Peel Police LDP statistics are only relevant insofar as they brought P.C. Nicholson's attention to a licensed establishment that merited scrutiny of drivers leaving from there. The LDP was the means by which P.C. Nicholson found himself at McGuire's Bar to engage in what was effectively a one-man RIDE programme. The LDP was not, however, the sole basis for pulling over Mr. Hume's car. Independent of the LDP, the officer was authorized by sections 48(1) and 216 of the Ontario Highway Traffic Act to pull over any driver at any time to check his sobriety.

[23] As in Cormack, it was not the location alone in this case but rather the reason for stopping Mr. Hume at that location that was at issue. The investigation of possible drunk drivers was the only purpose P.C. Nicholson had in mind. This entirely appropriate and lawful purpose was not accompanying, let alone acting as a cover for, any improper purpose. Combining his knowledge that drivers often leave McGuire's Bar after drinking too much with his general statutory authority to check driver sobriety P.C. Nicholson's stop and detention of Mr. Hume did not offend section 9 of the Charter.

[24] I find that the use of the LDP as an investigative tool is reasonable, efficient, and lawful. The LDP facilitates the focussing of limited police resources to where they can be most effective while at the same time helping to minimize inconvenience to the general motoring public. Where, as here, the police use the LDP as one factor amongst others in deciding to pull over possible drunk drivers its use is constitutional. Accordingly I dismiss the section 9 Charter application.

[25] Even if I am wrong and reliance on the LDP violated section 9 of the Charter, I would not have excluded the breath tests. If there was a breach, it was not serious because P.C. Nicholson was otherwise lawfully entitled to randomly stop Mr. Hume to check his sobriety. If there was a breach, it did not adversely affect Mr. Hume's Charter protected interests in any way. Lastly, if there was a breach, there was a public interest in litigating the matter on its merits given the gravity of drink/drive offences to society. On balance, even assuming a section 9 Charter breach, excluding the breath readings would not have been an appropriate remedy.

3.2: Was Mr. Hume's section 10(b) Charter right violated?

3.2.1: Positions of the Parties

[26] The defence submitted that monitoring and video recording of detainees as was done to Mr. Hume breaches a detainee's right to consult with legal counsel in private. The defence submits no evidence was led that Mr. Hume was made aware both of the existence of the camera and the non-existence of any audio monitoring or recording of his conversations with counsel in the phone room.

[27] The defence relied upon the unreported Provincial Court decision of R. v. Todd Keast, (November 7, 2006) Orangeville 05-1577. In that case, the police breath-testing room doubled as a counsel phone room. The room was fitted with audio and video recording equipment. When used as a phone room, the police monitored and video recorded the detainee, but they shut off the audio monitoring and recording. This was done in order to protect their breath testing equipment and to monitor the safety of the detainee while at the same time providing some privacy to him. The Accused did not testify, but the was evidence that the police did not explain to him that he was being visually monitored and recorded, nor did they explain that they were not listening to, or recording, the audio. After distinguishing R. v. Cairns, [2004] O.J. No. 210 (C.A.) on its facts, the learned trial judge in Keast found a breach of the Accused's section 10(b) Charter rights because he found that by video monitoring and recording without warning and by failing to inform the Accused they were not listening or recording his conversation, the phone room was no longer private. Consequently, the learned trial judge excluded the breath test results.

[28] The Crown submitted that in the circumstances of the case before me, Mr. Hume's right to consult with counsel in private was not breached. They relied on the cases of Cairns, supra and R. v. Sirelpuu, [2011] O.J. No. 3268 (O.C.J.), a case in which Mr. Lent was counsel for the defence.

3.2.2: Analysis

[29] The applicant bears the burden of establishing on a balance of probabilities that his Charter right was violated: R. v. Cairns, [2004] O.J. No. 210 (C.A.) at ¶ 10.

[30] The right to privacy is inherent in the right to retain and instruct counsel. The police have a duty to provide privacy to the detainee during his or her consultation with counsel: R. v. Playford, 40 C.C.C. (3d) 142 (Ont. C.A.); R. v. Gilbert, 40 C.C.C. (3d) 423 (Ont. C.A.); R. v. McKane, 35 C.C.C. (3d) 481 (Ont. C.A.); R. v. Peyton, 2007 ONCJ 431. However, privacy is rarely absolute and depends upon the purpose that privacy seeks to serve. As Duncan, J noted in R. v. Bhullar, 2013 ONCJ 326 at ¶ 14:

….In the context of right to counsel, privacy serves to protect the privilege that attaches to lawyer-client communications and also serves to encourage an uninhibited consultation, which in turn may be vital to the advice to be given.

[31] An actual lack of privacy breaches the s. 10(b) right: R. v. Carroll (2002), 24 M.V.R. (4th) 248 (O.C.J.). Even without an actual invasion of privacy, there will be a section 10(b) Charter infringement where the applicant establishes that he believed he could not retain and instruct counsel in private and that his belief was reasonable in all the circumstances: Cairns, supra; R. v. Burley, [2004] O.J. No. 319 (C.A.); Playford, supra at page 158. The presence of the camera without more is not enough to found either a breach in fact or a reasonable belief in a breach by the Accused: Cairns, supra.

[32] In considering the reasonableness of a belief in a lack of privacy, it is reasonable to expect the detainee to make his concerns known to the police. This is consistent with the detainee's obligation to be reasonably diligent in exercising his section 10(b) Charter rights: R. v. Burley, supra at ¶ 21-24; Peyton supra at ¶ 20-21.

[33] The determination of whether the privacy component of section 10(b) of the Charter was violated requires an examination of the totality of the circumstances. The circumstances here are the following:

(a) P.C. Nicholson told Mr. Hume he had the right to speak with a lawyer and Mr. Hume said he understood;

(b) Mr. Hume was brought to the phone room where he was left alone;

(c) Mr. Hume spoke with counsel by telephone for more than five minutes;

(d) Mr. Hume never gave any indication of being aware of a camera;

(e) The police were unable to hear or record Mr. Hume's conversation;

(f) Mr. Hume was not interrupted while he was in the room;

(g) There is no evidence that Mr. Hume ever told the police that he had any privacy concerns; and

(h) There is no evidence that Mr. Hume felt, or was in fact, constrained or inhibited in speaking with counsel.

[34] With respect to Keast, it may be distinguished from the case at bar. In Keast the police had to the capacity to eavesdrop and record the detainee's end of his conversation with counsel whereas that was not possible in this case. Furthermore, the camera used by the police in Keast was used primarily for gathering evidence whereas in Mr. Hume's case the camera appears to be for security purposes. As Duncan, J stated in Bhullar:

….The police may have a valid interest in ensuring that the detainee does not harm himself or damage such property as may be in the room. They may also have a valid interest in having a record available to rebut claims such that there was interim drinking (as per St. Pierre) or that the consultation was defeated or frustrated, for example by a malfunctioning phone or premature termination by police (as in R. v. Gao, [2012] A.J. No. 1282).

[35] In my view, the police in the case before me acted reasonably and afforded Mr. Hume the privacy that the circumstances permitted. The facts in this case are very similar to those in Sirelpuu, supra where De Fillipis, J. held that:

…It appears that the video surveillance of the room was a security measure. In any event, that surveillance was not accompanied by audio and it was not otherwise possible for a third party to determine what the defendant said to duty counsel. Moreover, the defendant was not aware of the surveillance and cannot be said to have been inhibited by it. There is nothing to suggest the defendant was deprived of the opportunity to have a full, frank, and private discussion with counsel

[36] On the evidence before me, I am satisfied that the presence of a camera inside the phone room that monitored and recorded Mr. Hume's general movements but which could not either listen to - or record - what he said did not amount to an actual invasion of privacy that interfered with Mr. Hume's exercise of his right to counsel. Nor has Mr. Hume demonstrated in the absence of any actual denial of privacy that he reasonably believed he could not consult counsel in private. He has therefore failed to establish that his privacy to consult with counsel was denied. The 10(b) Charter application is dismissed.

[37] It was disappointing that Mr. Lent failed to draw the court's attention to either of Sirelpuu or Bhullar. Each was a reported case in which he was counsel. Each was a case with facts much closer to the case at bar than to Keast. It would have been of greater assistance to the court, and more consistent with the court's expectation of candour from all counsel, that relevant decisions from both trial and appellate levels be brought forward. It is hoped that in the future Mr. Lent will bring all relevant cases on point to the court's attention.

4.0: CONCLUSIONS

[38] None of Mr. Hume's Charter rights were violated by the police. The charge of Driving with Excess Blood Alcohol contrary to section 253(1)(b) of the Criminal Code has been proven beyond a reasonable doubt. A verdict of guilty will be recorded.

ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

[1] Judgment given May 13, 2013. Mr. Lent was counsel in Bhullar, which was decided a full month before I tried the case at bar. The facts in Bhullar are very similar to the case at bar.