Court File and Parties

Ontario Court of Justice

Date: 2013-07-25

Court File No.: Central East 11-4278

Between:

Her Majesty the Queen

— and —

Craig Berry

Before: Justice C.M. Harpur

Heard on: October 12, 2012, May 30, 31, 2013

Reasons for Judgment released on: July 25, 2013

Counsel

Cameron Peters and Kristine Staats — counsel for the Crown

Peter G. Derry — counsel for the defendant Craig Berry

Harpur J.:

Overview

[1] Mr. Berry is charged with impaired care or control of his motor vehicle and failure to provide a suitable sample of his breath on July 3, 2011, contrary to sections 253(1)(a) C.C. and s. 254(5) C.C., respectively.

[2] The trial commenced on October 12, 2012. The Crown called the two officers who first attended the scene, P.C. Brian Mirco, a police officer with approximately one month's experience still in the training phase of his career at the time, and P.C. Donald Backlund, an officer with more than twenty years of experience who was helping to train P.C. Mirco. The Crown also called P.C. Scott Siriska, an officer with approximately three years' experience who attended the scene in response to a call for back-up from P.C. Backlund.

[3] At the end of the day on October 12, 2012, the trial was adjourned to the next available dates of May 30 and 31, 2013. In late December 2012, Mr. Derry filed an application for Charter relief on Mr. Berry's behalf. It alleges breaches of Charter sections 7, 9 and 10(a) and seeks both an exclusion of evidence under s. 24(2) and stay of these proceedings under s. 24(1).

[4] On May 30, 2013, the trial, blended with the Charter voir dire, proceeded. The Crown called further evidence from P.C. Siriska and from P.C. Mirco, as well as evidence from the authorized breath technician, P.C. Jack Harrison. The Crown then closed its case.

[5] Mr. Derry called both Mr. Berry and Ryan Webb, a friend of Mr. Berry with whom Mr. Berry had spent July 2, 2011 and part of the early morning of July 3. The evidence concluded on May 31, 2013 and submissions were made at that time. I reserved.

[6] As to the offence of impaired care or control, the Crown relies on Mr. Berry's impaired state when the police came upon him in the driver's seat of his car on the morning of July 3, 2011 – facts which the defence does not dispute – together with the presence of the keys on the car floor beside the driver's seat – also admitted – in asserting that it has proven beyond reasonable doubt that Mr. Berry's circumstances constituted the "realistic risk of danger to persons or property" described in R. v. Boudreault, 2012 SCC 56.

[7] As to the offence of failure to provide suitable breath samples, the Crown relies on the evidence of P.C. Harrison, disputed by that of Mr. Berry, to the effect that Mr. Berry was feigning his efforts to provide a sample, despite the officer's repeated coachings, how-to demonstration, and warning of consequences of failure.

[8] The defence position is fivefold: (i) Mr. Berry's and Mr. Webb's evidence should at least raise a reasonable doubt as to whether Mr. Berry was in care or control of his car when the police came upon him; (ii) the circumstances of the investigation and eventual arrest of Mr. Berry involved egregious breaches of his s. 7 and 9 Charter rights with the result that I should stay the care or control charge under s. 24(1) Charter; (iii) Mr. Berry's evidence should give rise to reasonable doubt on the issue of whether Mr. Berry's failure to provide the sample was wilful; (iv) again, the violation of Mr. Berry's s. 7 and s. 9 Charter rights should result in a stay of the failure to provide sample charge also pursuant to s. 24(1); and (v) the breach of Mr. Berry's s. 10(a) Charter right should result in an exclusion of P.C. Harrison's evidence concerning Mr. Berry's feigned attempts to provide a sample pursuant to s. 24(2) of the Charter.

[9] For the reasons that follow, I agree with the defence position that Mr. Berry's initial detention and eventual arrest for impaired care or control were arbitrary, that the force used by police in effecting the detention and arrest was excessive and that Mr. Berry's personal integrity and security were substantially interfered with. I further find that this state misconduct is such as to render applicable the words of Epstein, J.A. in R. v. Tran, 2010 ONCA 471 that, "proceeding with the prosecution… would undermine the public's confidence in the administration of justice". Thus, I am staying both charges pursuant to s. 24(1) and the common law doctrine of abuse of process.

[10] Were it not for the imposition of a stay, I would have found Mr. Berry guilty of both offences. I have applied the reasoning in R. v. W.D. Mr. Berry's evidence, in the context of the evidence of a whole, does not leave me with a reasonable doubt that he was indeed in care or control of his car when confronted by the police in the sense in which that phrase has been interpreted in Boudreault, supra. It also does not leave me with a reasonable doubt that his failure to provide a suitable sample was advertent.

Care or Control

[11] Turning first to the substantive offence of care or control, the undisputed facts are that, on July 3, 2011 at 4:09 a.m., Constables Mirco and Backlund came upon Mr. Berry sitting in his Mustang motor vehicle apparently asleep, backed into a space in a parking area for a masonry business in Springwater Township. The officers had received information of a "suspicious vehicle" in this location. The driver's window of the Mustang was down. Mr. Berry's head rested on the door. A pool of vomit approximately one foot in diameter was on the ground outside the door and some vomit was on the door itself.

[12] The officers blocked the Mustang in with their cruiser with their headlights on. They approached the car, yelling that they were police and attempting to rouse Mr. Berry. He awakened, seemed confused and began what became a steady stream of variants on the question "What's going on?". The keys were not in the Mustang's ignition. After Mr. Berry had been removed from the car, P.C.s Backlund and Siriska searched it and found the keys beside the driver's seat, between it and the driver's door, within reach of a person sitting in the driver's seat.

[13] On this evidence, the Crown says that the presumption created by s. 258(1)(a) C.C. has not been rebutted or that, even if Mr. Berry's and Mr. Webb's evidence could be seen as establishing that Mr. Berry did not occupy the driver's seat of the Mustang for the purpose of setting it in motion – but, rather, as Mr. Berry said, to "sleep it off" – nonetheless, the record demonstrates that he represented a "realistic risk of danger to persons or property" under the Boudreault test.

[14] Mr. Berry's evidence was that he had agreed with Mr. Webb that he would leave his Mustang parked outside the masonry retailer's gates and be driven by Mr. Webb to a party which the two planned to attend the night of July 2, 2011. Mr. Berry said he intended to have some alcoholic drinks at the party and that this prompted him to have Mr. Webb drive. He said he locked his car and put his car keys in the console of Mr. Webb's vehicle as they left, saying he would not be driving that night. Mr. Berry said he consumed some marihuana, approximately six beers and some pizza at the party, felt ill, found Mr. Webb and, at around midnight, had Mr. Webb drive him back to his car. Mr. Berry said he slept en route and had to be helped by Mr. Webb into his car. He said Mr. Webb used Mr. Berry's car keys to open the car and to open the car windows. He said the back seat was too full of his belongings to accommodate him with the result that he settled in the driver's seat and fell asleep. He said his next memory is of the police rousing him.

[15] Mr. Webb's testimony was that he has been a friend of Mr. Berry for approximately five years and works with him at Mount St. Louis Ski Resort. He confirmed the arrangement Mr. Berry had described to the effect that Mr. Berry was going to leave his car at GP Masonry, Mr. Webb's employer, when the two went to the party. Mr. Webb said he planned to drink only a small amount of beer. He said that, before they left for the party, Mr. Berry exited his Mustang, locked his car, put his keys in Mr. Webb's truck console and said he was "done driving". Mr. Webb confirmed that the two left the party at approximately midnight, July 2, after Mr. Berry approached him, said he was sick and asked to be driven to his car. Mr. Webb transported him. He took Mr. Berry's keys from his console, opened the car, helped Mr. Berry into the driver's seat, put down the driver's window part way using the keys in the ignition and, finally, threw the keys under the driver's seat. Mr. Webb confirmed that the backseat of Mr. Berry's car was full of his possessions.

[16] The Crown sought to establish through cross-examination of both defence witnesses that Mr. Berry's evidence that he had returned to his car merely to sleep off the effects of the evening should (a) be rejected, thus failing to rebut the s. 258(1)(a) C.C. presumption or (b) even if rebutting the presumption, not be seen as casting any doubt on the realistic risk inherent in Mr. Berry's circumstances. I regard the second of these Crown efforts as successful.

[17] Mr. Berry's and Mr. Webb's uncontradicted evidence that Mr. Berry had resolved not to drive before they left for the party and their evidence of Mr. Berry's bedding down in his car after their return, which I do not reject, suffice to rebut the presumption.

[18] However, the concessions of Mr. Berry and Mr. Webb in cross-examination dispel any idea that Mr. Berry's initial resolution not to drive that night was fixed or inviolable. Its fixity seems to me to depend on Mr. Berry's perception that he lacked his car keys. Mr. Berry said he was unaware after entering his car that Mr. Webb had thrown the keys under his seat. Mr. Webb confirmed that Mr. Berry did not see him take this step. I am unable to accept the evidence of either man on this point. Mr. Berry acknowledged having a substantial number of valued possessions with him in his car, including a satellite radio and various electronic components. According to Mr. Berry and the evidence of P.C. Siriska, Mr. Berry also had with him in his car a film role case and a ziplock bag, both containing quantities of marijuana. Mr. Berry said he was aware of Mr. Webb putting down his driver's window using the car key to do so. Mr. Berry was, he said, planning to sleep off his intoxication and illness and then "maybe" call his aunt to have her attend at his mother's home to get and to bring to him a second set of keys to his car. He said he also had in mind, as potential key-bringers, his grandparents and his mother's boyfriend, all of whom lived near his mother's home. He acknowledged that none of these people had been contacted in advance to advise them of this potential. Mr. Webb said Mr. Berry advised him that he would call either his mother or his aunt to drive him home in the morning. He also said he thought Mr. Berry would call him in the morning in order to get his keys, but that, because he (Mr. Webb) would be working, he preferred to leave the keys in the car.

[19] On this evidence, I find that Mr. Berry was aware of the presence of his car keys in the car at the point where Mr. Webb left him. I regard as implausible the notion that either man would consider as acceptable a scenario in which Mr. Berry, verging on unconsciousness, is left alone in the driver's seat of his possession-laden car in a public place, in the middle of the night with his driver's window wide open and without the means to secure his car. If Mr. Webb's evidence of having left Mr. Berry in his car with the window partially down is accepted, since the window was fully open when the police arrived, it follows that Mr. Berry woke following Mr. Webb's departure and, necessarily using the car key to do so, fully lowered the window.

[20] Combining Mr. Berry's knowledge of the presence of his car keys with his admittedly intoxicated state and the apparent operability of the Mustang on the morning of July 3, 2011, I find that the realistic risk of harm to persons or property spoken of in Boudreault existed. It is an agreed fact that setting the manual transmission Mustang into motion required simply starting the car, putting it in gear, and releasing the clutch.

[21] This is one of those situations where public safety depended either on Mr. Berry's accurately assessing whether he had ceased to be impaired or on his professed intention to bring a third party to the scene (although this latter prospect for the avoidance of danger seems more a part of Mr. Berry's position that he had no knowledge of the presence of his car keys, which I reject). As to Mr. Berry's powers of self-assessment, the record does nothing to dispel the concern expressed by the majority in Boudreault on this point:

The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.

[22] As to the permanence of the plan to have someone else drive Mr. Berry, the variety of the persons described by him and by Mr. Webb as those who, unknown to them, could be summoned to Mr. Berry's assistance undermines any notion that, in this regard, he possessed a plan which could be characterized as "objectively concrete and reliable", in the words used in Boudreault.

[23] Since this is a case of an inebriated accused behind the wheel of his car with the present ability to drive it, and since Mr. Berry has not adduced credible and reliable evidence tending to prove that no realistic risk of danger existed, he would, absent Charter and common law stay considerations, be found guilty.

The Failure to Provide a Suitable Sample Offence

[24] Mr. Berry said he was making his best effort to provide a sample for P.C. Harrison, even if he failed to do so. P.C. Harrison said that Mr. Berry was faking. Mr. Berry said he was "confused, worried and exhausted" when he was trying to give his samples and that this affected his ability to do so. P.C. Harrison said Mr. Berry was "very vocal" in their dealings and consistently "spoke over" P.C. Harrison's remarks to him. The officer said that, eventually, Mr. Berry puffed his cheeks after placing his lips on the instrument mouthpiece but would not maintain an air flow for an adequate period, despite coaching and warnings to the contrary. P.C. Harrison said that Mr. Berry's cheek-puffing was memorable, in that it is one of only three refusals (or wilful failures) he has experienced since becoming a qualified breath technician in 2001. P.C. Harrison testified that the approved instrument was in proper working order. Mr. Berry conceded in cross examination that he had consumed both marijuana and several beers on the night of July 2, 2011 and that their consumption can interfere with his memory. He conceded that he does not remember clearly "some things" from the night of July 2/3, 2011.

[25] I have applied the W.D. reasoning to this evidence concerning the failure. I find that it does not raise a reasonable doubt as to Mr. Berry's advertence in not giving an adequate sample. I regard P.C. Harrison's evidence as reliable. He was an experienced breath technician whose opinion as to the cause of the failure is entitled to weight. He seemed quite fair and matter-of-fact in his testimony. Mr. Berry's recollection is weakened by his admitted intoxication. At its highest, Mr. Berry's evidence is to the effect that he was prevented from giving a proper sample because of his confusion, worry and exhaustion. However, Mr. Berry was energetic, confident and assertive enough to "speak over" P.C. Harrison when they were together and to insist on giving "his side" of the incident to the officer in the breath room. There is no evidence from either P.C. Harrison or Mr. Berry that Mr. Berry raised his exhaustion, confusion or worry as the reasons for his failure at the time. I do not accept that his condition prevented his provision of a suitable sample. I find, accordingly, that the Crown has proven the mens rea element of the offence in the sense that the failure was purposive and under Mr. Berry's control.

The Application for Stays

(a) The Relevant Evidence

P.C. Mirco

[26] P.C. Mirco testified that, following an unsuccessful effort by him and P.C. Backlund to rouse Mr. Berry as he sat in his car, P.C. Mirco parked his cruiser in front of Mr. Berry's car to prevent it from escaping. He said that he and P.C. Backlund approached the driver's window and were able to wake Mr. Berry. He said that he then detected an odour of alcohol coming from Mr. Berry's car. He said P.C. Backlund and he told Mr. Berry repeatedly to get out of the car, to which Mr. Berry simply repeated "What's going on?". He said his insistence that Mr. Berry exit the car was to investigate a potential care or control offence.

[27] P.C. Mirco said that, once Mr. Berry spoke, he smelled alcohol on Mr. Berry's breath. He said that he and P.C. Backlund then physically removed Mr. Berry from his car and told him he was under investigative detention for impaired care or control. He said that, since Mr. Berry had earlier been resistant to the officers' efforts to get him out of his car, they decided to handcuff Mr. Berry, did so, and escorted him to their cruiser.

[28] P.C. Mirco said P.C. Backlund then instructed Mr. Berry to get into the cruiser, that Mr. Berry refused, that the two officers then pushed him head first into the cruiser's rear seat and closed the passenger side door, that Mr. Berry then straightened his legs and propelled himself out the driver's-side rear door of the cruiser onto the parking lot's gravel surface, and that he and P.C. Backlund then picked Mr. Berry up and leaned him over the hood of the cruiser in order to catch their breaths.

[29] P.C. Mirco testified that P.C. Backlund called for back-up. He said that P.C. Siriska arrived five minutes later. He said he and P.C. Siriska held Mr. Berry and forced him to his knees, although Mr. Berry kept trying to rise. He said P.C. Siriska grounded Mr. Berry face down on the lot surface and that he and P.C. Siriska held him there. P.C. Mirco said Mr. Berry continued to resist. He said he observed P.C. Backlund searching Mr. Berry's car. He said he and P.C. Siriska lifted Mr. Berry up and got him into the back of the cruiser. P.C. Siriska joined P.C. Backlund. P.C. Mirco was told that the keys to the car had been found inside it with the result that he arrested Mr. Berry at 4:33 a.m. and gave him his rights to counsel and the breath demand. P.C. Mirco and P.C. Backlund then drove Mr. Berry to the Barrie O.P.P. detachment, arriving at 5:01 a.m.

[30] In cross-examination, P.C. Mirco conceded knowing of no legal basis to require Mr. Berry to be placed in the police cruiser and that he was deferring to P.C. Backlund in taking this step. He also conceded knowledge of no legal basis to require Mr. Berry to be and remain on his knees when in the investigative detention custody of himself and P.C. Siriska.

P.C. Backlund

[31] P.C. Backlund confirmed much of what P.C. Mirco had said. He added that the handcuffing of Mr. Berry when he exited his car was "for officer safety" because Mr. Berry was large, had been resistant and seemed hostile in tone and body language.

[32] Contrary to P.C. Mirco's evidence, P.C. Backlund said that Mr. Berry had been arrested for impaired care or control by the time P.C. Backlund went to search Mr. Berry's car. On this point, P.C. Mirco was quite clear in his evidence, which I accept, that the presence of the car keys in Mr. Berry's car was the basis for the arrest, a presence only discovered by the search. The search of the car thus constituted a breach of Mr. Berry's s. 8 Charter right, although he has not relied on such a breach in seeking Charter relief.

[33] P.C. Backlund said he had no recollection of physically removing Mr. Berry from his car. In this matter, I prefer the evidence of P.C. Mirco, whose testimony suggested that what he was observing was new and making a significant impression.

[34] In cross-examination, in response to Mr. Derry's questioning as to why the officers had tried to put Mr. Berry in the cruiser when he was not under arrest, P.C. Backlund said the following:

Q. Well, wait a minute, Constable Backlund, he's now out of the vehicle, there are no keys to be seen, he's handcuffed to the rear, and are you telling us now you put him in the cruiser because there was a vehicle that he might have access to. Are you seriously telling us that? He's handcuffed.

A. I didn't say that at all.

Q. Well, why would you put him in the cruiser?

A. I guess that's our, our place of work where we can converse. It's our comfort zone, it's where we conduct business about 11 hours of a 12-hour day. That seemed the most likely place to put the individual …

Q. So, you were at the end of your shift …

A. …instead of leaving us on the side of the road.

THE COURT: Just wait for the answer, please.

MR. DERRY: I'm sorry, I thought he had finished, Your Honour.

A. Instead of leaving us on the side of the road.

Q. He made no attempt to flee.

A. No.

Q. You could have conversed with him without forcing him into the cruiser, couldn't you?

A. Well, a lot of our time is spent with dealing with individuals in the cruiser. I don't want to say it's semantics, I – that's where we conduct a lot of our business, and he was required to – by me, to go into the car, that's where I was going to conduct my business.

Q. To your knowledge, you're a seasoned officer of some number of years, what legal basis did you, in your mind have to force him into the cruiser when he didn't want to get in? Tell me that, please. You used the phrase, while you ponder that answer, you used the phrase, "my place of business," your place of business then is a locked rear seat because once the passenger is in there they can't get out, is that correct?

A. Well, it so happens to be that, but it's, it's safe and it's my police vehicle.

Q. Right.

A. But it just so happens, yes, it's a secure, as you call, you can't get out, that's correct.

Q. So, back to the original question, with your experience, what legal basis did you have when he didn't want to get in the cruiser to physically force him? Please tell me.

A. I guess from a perspective it's, it's all a matter of – I – there may not be a legal basis, that's just how I guess it happened.

P.C. Siriska

[35] P.C. Siriska said he responded to P.C. Backlund's call for backup. He said he arrived on scene and that he saw Mr. Berry on his knees by a front tire of P.C. Mirco's cruiser. He said in chief that he was told Mr. Berry was under arrest. He took hold of Mr. Berry. He said Mr. Berry kept trying rise and that he kept telling Mr. Berry to stay on his knees. He said that, after three or four efforts by Mr. Berry to rise, he "grounded" him. Mr. Berry thrashed about beneath him. He said he administered a blow to Mr. Berry's right side. He attempted to search Mr. Berry as Mr. Berry lay on his stomach on the ground. He said Mr. Berry grabbed at his hands and told P.C. Siriska that the officer could not search him. P.C. Siriska said he bent one of Mr. Berry's hands backward in a wrist lock after which Mr. Berry became cooperative with the officer's effort to search him and, together with P.C. Mirco, to place Mr. Berry in the cruiser. P.C. Siriska said he then went to search Mr. Berry's car "incident to arrest".

[36] In cross-examination, in response to my question, P.C. Siriska initially reiterated his evidence in chief that he had been told Mr. Berry was under arrest for the impaired offence prior to searching Mr. Berry's car. Subsequently, in cross-examination on May 30, 2013, P.C. Siriska said he had not heard that Mr. Berry was under arrest at the time of his search of the car but, rather, assumed this because Mr. Berry was in handcuffs. It is the last of these versions which I regard as accurate. It is consistent with P.C. Mirco's testimony.

Mr. Berry

[37] Mr. Berry denied resisting the police when told to get out of his car or when being taken to the cruiser or put into it. He said his right leg cramped and that he did push himself when on the back seat of the cruiser but inadvertently, through a straightening of the cramped leg, and not enough to eject himself from the cruiser. He said he was pulled out of the back seat onto the parking lot surface by P.C. Backlund and was held down by P.C. Backlund and P.C. Mirco. He said P.C. Backlund called for back-up and that P.C. Siriska and a female officer arrived. He said that P.C. Siriska grounded him immediately on arriving, placed his knee in the back of Mr. Berry's neck and punched Mr. Berry forcefully on his right side. Mr. Berry said his face was cut by the gravel lot surface. Exhibit 1 at trial is a photograph of Mr. Berry's face taken at Royal Victoria's Hospital on the morning of July 3, 2011 showing some abrasions.

[38] Mr. Berry testified that P.C. Siriska searched him while he was on the ground. He denied resisting. Mr. Berry said that, eventually, P.C. Siriska used a wrist lock on him, injuring his wrist. He said he complained of this injury immediately on receiving it and consistently thereafter but that he did not receive medical attention until approximately one hour after he was taken to the Wasaga Beach O.P.P. detachment following the attempted breath sampling. Mr. Berry said his wrist continues to give him pain on occasion.

The Alleged Charter Breaches

[39] Even putting the Crown's case at its highest on this record, Mr. Berry's s. 7 and s. 9 Charter rights were clearly violated. As indicated, I accept P.C. Mirco's evidence that he arrested Mr. Berry at 4:33 a.m. when told of the keys in the Mustang, not earlier. Yet by 4:33 a.m., Mr. Berry had been handcuffed, forced into the back seat of a police cruiser, held down on his knees on a gravel parking lot, leaned over the hood of a police cruiser, "grounded" and held face down on the gravel lot, punched on the right side of his body and subjected to a wrist lock. Mr. Berry's face had been cut and his wrist injured.

Sections 7 and 9

[40] In R. v. Nasogaluak, 2010 SCC 6, the accused's s. 7 right was found at a sentencing hearing to have been violated by an excessively forceful arrest. There, the exercise on which the police had embarked was the arrest of a suspect thought to be impaired and who had to be pursued at high speed. In the effort to arrest him, the police punched Mr. Nasogaluak in the face three times, grounded and straddled him, and punched him twice more in the back, breaking ribs. Following the arrest, the police did not make any use of force report.

[41] Lebel, J., for a unanimous court, considered this conduct in the context of s. 25(1) C.C. and described the allowable degree of force as "constrained by the principles of proportionality, necessity and reasonableness".

[42] In Mr. Berry's case, the police officers conceded in cross-examination that Mr. Berry did not, at any point prior to his arrest, attempt to flee or threaten any of the officers by word or gesture or appear to possess any weapon. He was in the custody of, initially, two officers and, subsequently, four officers and was handcuffed to the rear. He was not compliant with P.C. Backlund's and P.C. Mirco's demands that he enter their cruiser or, once out of it, stay on his knees, but neither police officer could provide, nor can I discern, a valid reason why he was required to do so.

[43] When one adds to this picture the fact that Mr. Berry was being investigatively detained, not arrested, the police conduct becomes more disturbing. The extent of tolerable interference with Mr. Berry's liberty was limited in law to that necessary to enable Constables Backlund and Mirco to perform their duty: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. Their duty at that time was to investigate whether grounds existed to arrest Mr. Berry for the offence of impaired care or control. While that investigation might arguably legitimize compelling Mr. Berry to exit his car – if necessary to discern whether the smell of alcohol was emanating from the car or from Mr. Berry, for example, although this does not seem to have been required by P.C. Mirco – it cannot be seen as justifying handcuffing Mr. Berry and forcing him to enter the cruiser.

[44] I accept the officers' evidence that Mr. Berry intentionally propelled himself out of the cruiser and I reject Mr. Berry's that he was just fixing a cramped leg. The officers' recollection of the evening was not impaired by alcohol or drugs. P.C. Backlund was engaged in training P.C. Mirco and is most unlikely to have wanted to demonstrate how one needlessly pulls a suspect out of a cruiser onto the ground. I accept that Mr. Berry had become strongly resistant to the officers' efforts by this time and self-ejection is far more consistent with that attitude than with a coincidental leg cramp.

[45] However, Mr. Berry's resistance to being handcuffed and forced into the cruiser strikes me as entirely understandable. He was not under arrest but, rather, subject in theory only to such police control as was needed to investigate grounds to arrest him. With reason, he took issue with the officers' perception that this control required his being handcuffed and held in the cruiser. This opposition led to Mr. Berry's self-ejection from the cruiser and, in turn, the escalated efforts of P.C. Backlund, P.C. Mirco and, eventually, P.C. Siriska to assert physical control over Mr. Berry. The triggering application of handcuffs and manhandling at the cruiser were not "proportional, necessary and reasonable". Mr. Berry's s. 7 Charter right was breached.

[46] Mr. Derry relied in written and oral argument on the excessive force of the police officers in urging, as well, a finding of breach of Mr. Berry's right not to be arbitrarily detained under s. 9 of the Charter. I accept his argument. As indicated, Mr. Berry's investigative detention went well beyond the bounds of necessary police interference with Mr. Berry's liberty and was a de facto arrest, both prohibited according to Mann.

[47] In R. v. Duguay, affirmed on other grounds , the Ontario Court of Appeal observed that not every unlawful arrest constitutes an arbitrary arrest or detention. Determination of the issue depends, Duguay holds, on (i) the particular facts of the case at bar (ii) the extent of the departure from reasonable and probable grounds in the instant case, and (iii) the honesty of, and basis for belief in, the existence of reasonable and probable grounds on the part of the arresting officer.

[48] Extrapolating those principles to the circumstances of Mr. Berry's investigative detention, again, I regard the necessary interference with Mr. Berry's liberty required to assess grounds for his arrest as significantly less than the interference imposed.

[49] I accept that P.C. Mirco and P.C. Backlund believed in the need for Mr. Berry to be removed from his car, handcuffed and placed in their cruiser. I also accept P.C. Siriska's evidence that he assumed that Mr. Berry was under arrest and needed to be physically controlled. Finally, I recognize Nasogaluak's principle that the police cannot be held to a standard of perfection in carrying out dangerous and demanding work, often in emergencies.

[50] However, the prevailing circumstances at the point of P.C. Backlund's decisions to handcuff Mr. Berry and put him in the rear seat of the cruiser simply did not call for these actions on any objective basis. They were based on P.C. Backlund's "feeling" that Mr. Berry might prove hostile and violent while subsequently under investigation and on his preference to conduct his police business from within his cruiser. The effort to put Mr. Berry in the cruiser led to the ensuing, repeated forcing-to-knees, the grounding, the blows and the wrist lock. These latter steps by the police were not in themselves unreasonable or disproportionate as responses to Mr. Berry's escalating resistance but they are blameworthy nonetheless, in my view, because they are attributable to P.C. Backlund's and P.C. Mirco's unjustified, initial handcuffing and insistence on confinement in the police cruiser.

[51] Mr. Derry submitted that the police misconduct in the arrest of Mr. Berry was exacerbated by their prolonged refusal to attend to Mr. Berry's complaints of injuries. I was not satisfied on the evidence I heard that Mr. Berry's medical condition was ignored to the point of Charter-infringing abuse. Exhibit 1 indicates that Mr. Berry suffered several facial abrasions either when he was ejected from the cruiser or, more probably, when grounded and held down face-first by P.C. Siriska on the GP Masonry parking lot. However, P.C. Mirco said he did not note or recall observing such marks on Mr. Berry. He said Mr. Berry seemed cordial and made no complaint of injury in the course of the ride from the Barrie O.P.P. detachment to the Huronia West O.P.P. detachment. He said Mr. Berry did complain about his wrist (noted by P.C. Mirco as a sore thumb) when being placed in the cruiser at the scene and once subsequently, and that this injury was attended to when they reached Huronia West.

[52] P.C. Backlund said he saw an injury to the right side of Mr. Berry's face, either as he, P.C. Mirco and Mr. Berry drove to the Barrie detachment or once at that detachment. He also said that Mr. Berry complained of a wrist injury en route to the Barrie detachment which "didn't appear to me", which I take to mean was not apparent, and that Mr. Berry complained again about his wrist at the Huronia West detachment, at which point medical assistance for that injury was summoned.

[53] P.C. Siriska said that Mr. Berry's complaints of injury related to his wrist. He said that he completed a use of force report, although Crown counsel at trial advised that no such report was received by the Crown from the O.P.P. or disclosed to Mr. Derry. P.C. Siriska said he did not recall seeing abrasions on Mr. Berry's face.

[54] The record on this issue falls short of that in Nasogaluak in terms of alleged indifference to a suspect's injuries. In Nasogaluak, the arresting officers were found to have failed to report the extent of the accused's injuries or to ensure that he received medical attention in circumstances where both of these things clearly should have occurred. Here, I accept the officers' evidence either that Mr. Berry's facial injury did not make an impression on them (Mirco and Siriska) or did not appear to necessitate medical attention (Backlund). I also accept their evidence that the need to address Mr. Berry's wrist injury only became clear once they were at Wasaga Beach. Thus, I do not regard the failure to respond to these injuries earlier as adding to the gravity of the section 7 and 9 Charter breaches.

Section 10(a)

[55] I accept P.C. Mirco's and P.C. Backlund's evidence that they advised Mr. Berry, after Mr. Berry was out of his car, that he was under investigative detention for impaired care or control. Mr. Derry rightly points out that all of the witnesses stated that Mr. Berry continually asked the officers "What's going on?". However, this questioning seems to me more a part of Mr. Berry's ongoing denials of the right of the police to treat him as they did, as opposed to genuine bewilderment about the nature of their efforts: he had been told what they were doing. Accordingly, I find that there was no breach of Mr. Berry's Charter s. 10(a) right to be informed promptly of the reasons for his detention and I would not grant any Charter relief on this basis.

The Appropriate Remedy

[56] Mr. Derry relies on the second or "residual" category of bases for a stay as described by the Supreme Court of Canada in R. v. O'Connor, 4 S.C.R. 411, as follows:

Where the adverse impact upon the accused's ability to make full answer and defence is curable by a disclosure order, then such a remedy, combined with an adjournment where necessary to enable defence counsel to review the disclosed information, will generally be appropriate. There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy the prejudice. In those "clearest of cases", a stay of proceedings will be appropriate. When choosing a remedy for a non-disclosure that has violated s. 7, the court should also consider whether the Crown's breach of its disclosure obligations has violated fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable, having regard to the seriousness of the violation and to the societal and individual interests in obtaining a determination of guilt or innocence.

[57] Here, Mr. Berry was subjected to considerable violence and some injury on the morning of his arrest as a result of justified resistance to an unjustified, pre-arrest handcuffing and attempted imprisonment in the rear seat of a police cruiser. While it can be fairly be said that the violence and injury would not have occurred if Mr. Berry had simply cooperated with the steps the police were insisting upon, he was not obliged to cooperate and should not have had to pay a substantial toll for his unwillingness to do so.

[58] In R. v. Jageshur, 169 C.C.C. (3d) 225 (O.C.A.), on facts involving a "reverse sting" drug investigation, Doherty, J.A., said this:

It is well established that police conduct may render a subsequent criminal prosecution an abuse of process. This occurs if the conduct renders the trial itself unfair or if it is so offensive to community notions of fairness and decency as to demand that the court refuse to lend its processes to a prosecution dependent on such conduct: [citations omitted]

[59] Here, Constables Mirco and Backlund acknowledged, in retrospect, that they could identify no legal basis for insisting that Mr. Berry be imprisoned in the cruiser. Yet, at the time, their insistence was peremptory and violent. In my view, this conduct demonstrates a shocking disregard for a suspect's rights and is offensive to society's sense of "fair play" in the investigation of crimes by the police.

[60] I turn to the countervailing societal interest in prosecuting the impaired care or control and failure to provide suitable samples charges. Mr. Derry acknowledged in argument that drinking and driving offences represent an extremely damaging incursion into the safe and orderly conduct of human affairs in society and are very serious. He emphasized, however, that Mr. Berry's case involves no death, personal injury or even operation of a motor vehicle. The defence position was, in effect, that, serious as is the type of offence committed by Mr. Berry, the need for prosecution of his charges on their merits does not outweigh the need to distance the court's process from a prosecution marred by serious state abuse. I agree with this submission. The charges are stayed.

Released: July 25, 2013

"Justice C.M. Harpur"

Justice C.M. Harpur, O.C.J.