Ontario Court of Justice

Central West Region Brampton, Ontario

Between:

Her Majesty the Queen

-and-

Paramdeep Singh

Reasons for Judgment

Duncan J.

The Charge and Main Issue

[1] The defendant is charged with driving over 80, offence date May 7, 2012. The defence focuses on the constitutionality of the defendant's encounter with the police and the legality of some of the procedures that followed.

The Main Issue:

[2] The defence argues that the fact that the defendant was at all material times in a shopping centre parking lot rendered him immune from random (groundless) detention for sobriety check, otherwise authorized by the Highway Traffic Act. The argument continues: In the absence of such statutory authority, any investigative detention had to be based on reasonably grounded suspicion. Such grounds were absent and accordingly the detention was unlawful and arbitrary (section 9); the ensuing breath testing was unreasonable (section 8).

[3] Notwithstanding the very able presentation by Mr. Henderson, it is my view that the argument cannot succeed because:

1. The defendant was not detained.
2. If he was detained, the detention was not arbitrary but rather was a properly grounded investigative detention.
3. If he was arbitrarily detained, such arbitrary detention was authorized by the common law.

The Evidence

[4] Police constable Boudreau, along with her partner Cst. Nelson, were patrolling in a marked police car doing sobriety checks on motorists. They were focused on areas of high incidence of impaired driving, that is, areas near bars and banquet halls. At around 12:45 am, on entering a plaza that contained two such establishments, she saw a black vehicle heading toward the exit but then make an abrupt right angle change of direction and head back to the plaza. The officer suspected that the driver had seen her police car and might be seeking to avoid police contact, possibly due to excessive alcohol consumption.

[5] The vehicle went back to the area of one of the bars and parked. The police car, with overhead lights activated, parked behind the black car just as the defendant/driver got out. Officer Boudreau conveyed to the defendant that she wanted to check his sobriety. She did not know exactly what she said, but the defendant stopped. Boudreau almost immediately detected obvious signs of alcohol consumption and impairment – eyes "shut" and red, slurred speech, smell of alcohol. He was subjected to an ASD demand and was very unsteady on his feet while being tested in a standing position. He blew a fail and was arrested. The usual procedures ensued and he ultimately provided breath samples that betrayed BAC of 160 and 150.

Detention

[6] The defendant's argument is premised on the contention that he was "detained" within the meaning of section 9 of the Charter when he was first approached by police. It should be emphasized that the focus of the argument is on the initial moment of encounter. I understand it to be conceded that almost immediately thereafter, on observation of the defendant's condition, there were ample grounds for detention.

[7] In R v Therens (1985), 18 CCC3d 481(SCC), the Supreme Court recognized 3 types of constitutionally significant detention:

1. Actual physical restraint – being held in custody.
2. Psychological detention imposed by a legal obligation to comply with a police officer's demand or direction.
3. Psychological detention where there is no legal obligation to comply but where a reasonable person would conclude that he had been deprived of his freedom of choice.

[8] These principles apply to both motor vehicle stops and pedestrian stops. The former are relatively easy in that it has been declared that the mere pulling over of a vehicle puts the driver in a state of constitutional detention for all purposes including section 10(b), subject to section 1: See R v Orbanski 2005 SCC 37, [2005] 2 SCR 3; R v MacDonald 2012 ONCA 495 at para 29. Pedestrian stops are not so clear. As the Court of Appeal recently observed, the question of what qualifies as a psychological detention of the third category is fraught with difficulty: R v Atkins 2013 ONCA 586. On the one hand, almost every encounter between police and an individual could support a plausible argument that it falls within the definition of this type of detention. On the other hand, the authorities are clear that not all such encounters amount to "detention" in the constitutional sense. That the determination of the issue in any fact situation is difficult is perhaps best illustrated by the difference of opinion in the Supreme Court itself in Suberu.

[9] So the first question is whether this was a vehicle stop or a pedestrian stop case. I think it was the latter. On the evidence, the defendant was not pulled over but chose to stop his car. He was parked and was getting out of the car as the police pulled up. There was no evidence that he stopped in obedience to any police action or direction or that he was even aware that he was being followed. I have considered whether it is appropriate to draw a distinction between this and a vehicle stop scenario as we are repeatedly reminded to avoid fine distinctions in interpretation of Charter rights. The reality is that this was a motorist sobriety check situation. Should it matter that the driver stopped by himself an instant before he would have been pulled over anyway? However the decided cases, as discussed below, reveal that determination of the detention issue frequently turns on apparently minor fact variations. Moreover, viewing the matter on a principled basis, the distinction may not be so minor. Detention is all about the deprivation of the freedom of choice. If the motorist chooses to stop, other than in response to a police command, he cannot claim to have been so deprived - at least at that point.

[10] I am fortified in this conclusion by the decision of the Court of Appeal in R v Calder, [2004] OJ No 451. In that case a police officer had followed the accused's vehicle into a parking lot where he parked. The officer approached and spoke to him as he sat in the driver's seat. The Court held that there was no detention and that the officer needed no legal authority to proceed as he did.

[11] Besides its confirmation of the validity of the distinction between a driver stopping on his own and being pulled over by police, Calder is almost a complete and simple answer to the detention issue in this case. The main difference here is that the defendant had stepped out of his car before he was spoken to by police. On the dubious assumption that this difference might have some legal significance, I will therefore engage the issue, "fraught with difficulty", as to whether a pedestrian detention occurred. Again the focus is on the moment of first encounter with the police.

[12] The Court in Grant identified a number of factors that might be relevant to the question of whether a detention occurred: Was it general policing or an adversarial encounter involving focused suspicion or pointed questioning? What was the duration of the encounter? Was there physical contact or forceful words or commands directed to the subject? Before discussing these factors as they apply to this case, it is useful to examine how the Supreme Court itself applied them in the cases before it:

Mann: Accused was stopped walking on the street as a possible suspect in a break and enter. He was asked for and provided his name and date of birth. He was then subjected to a pat-down search which disclosed a soft object in the pouch of his hooded sweatshirt. The officer reached into the pouch and found marijuana, the subject of the charge. The trial judge held that detention arose, not with the initial stopping and questioning, but at the point of search. The Supreme Court of Canada accepted that conclusion (para 19).

Grant: Accused pedestrian appeared to police to be behaving in a nervous manner. Uniformed officer pulled up in police car and then stood in the path of where the accused was walking. The accused was asked to identify himself and show i.d., which he did. He was directed to keep his hands in front of him. Two plainclothes officers then joined and stood behind the uniformed officer, completely blocking the way forward. The accused was then questioned about past criminal activity and whether he had anything in his possession that he shouldn't have. He admitted to having weed. He was asked again and admitted having a firearm. The Court held that Grant was not detained at the initial stopping and demand for identification. Rather detention occurred later with the combination of direction as to his hands, arrival of the other two officers and the pointed questioning (para 52).

Suberu: Staff at an LCBO had been alerted to watch for two men who had been using a stolen credit card to purchase gift certificates in nearby towns. The accused Suberu and his companion entered the store and drew suspicion, prompting a call to police. An officer arrived and saw one of the suspects talking to employees at the cash register while the other, Suberu, walked out saying to the officer in passing him "its him, not me, so I guess I can go". The officer told him "Wait a minute. I need to talk to you before you go anywhere". Suberu got into the driver's seat of a van. The officer questioned him as to his association with the man inside and where he was coming from. He then received further information about the earlier mis-use of the card at LCBO stores in other communities. He looked in the van and saw LCBO bags in it. He then arrested Suberu. On these facts, the majority of the Supreme Court of Canada held that there was no detention (prior to arrest).

[13] With these examples in mind as illustrative, I turn back to the present case and examine the circumstances, applying the Grant factors: While there was focused suspicion directed to the defendant it was still at a very early exploratory stage. It had not yet taken on any adversarial characteristics. Although this factor tends to support a conclusion of detention, it does so rather weakly in this case. It is more than offset by the very brief duration of the initial encounter together with the lack of physical contact or impediment to movement. Further there is an absence of any evidence that a command or direction was issued. On the Grant factors approach, consideration of all of the circumstances of the encounter leads me to the conclusion that the defendant was not detained at the point in time in issue.

[14] Another approach that may provide guidance is to look to purpose. The Supreme Court emphasized that its interpretation of "detention" is directed by a purposive compass. A finding of detention should more likely be made where the associated rights, particularly the right to counsel, might serve some purpose. Accordingly, the Court considered that Grant could have benefitted from legal advice as to his right to silence - his right to refuse to answer the questions that lead to his self-incrimination.

[15] In this case, at the point in time in focus, there was no questioning that could result in the defendant giving incriminating responses. It was the defendant's physical condition that was his downfall. His physical condition is not something shielded by any concept of self-incrimination: see R v Orbanski 2005 SCC 37, [2005] 2 SCR 3 at para 58. Accordingly, a purposive analysis re the 10(b) right to counsel supports a conclusion of no detention.

[16] With respect to section 9, its purpose is to ensure that individuals can move about and conduct themselves freely; to protect against unjustified state coercion and interference with an individual's physical and mental liberty: Grant para 20. But it does not insulate individuals from all contact with authority and is not engaged by encounters that are detentions in the common usage of the word, but involve no significant physical or psychological restraint. In my view, this aptly describes the initial encounter in this case. Indeed if the defendant is to be considered detained, then it is difficult to imagine any police encounter with an investigative purpose that would not also be considered a detention.

[17] In sum, on a purposive analysis as well as on a factor-directed analysis, and having regard to the examples cited, I am not satisfied that the defendant was detained at the time in question.

Not Arbitrary

[18] If I am wrong in the above conclusion, it is my view that, in any event, the detention of the defendant was not arbitrary.

[19] An investigative detention will be lawful if it is based on reasonable grounds to suspect the commission of an offence. The Supreme Court of Canada recently pronounced on the meaning and application of this test in R v Chehil 2013 SCC 49, [2013] SCJ No 49 and R v MacKenzie 2013 SCC 50, [2013] SCJ No 50. The Court emphasized that the question is whether the facts, objectively viewed, were indicative of the possibility, not probability, of criminal activity, in light of the totality of the circumstances: see Moldaver J for the majority in MacKenzie at para 71–74. The standard to be met is not onerous, as the facts in that case demonstrate.

[20] By way of further example, this time in the impaired driving context, regard should be had to R v Wilson, [1990] 1 SCR 1291, a companion case to Ladouceur. In that case, in a small Alberta town, the accused's truck was stopped because it had out of province plates, it was about a block away from a hotel bar that had just closed and the officer did not recognize the truck or its three occupants. The Supreme Court of Canada held that the stop was not arbitrary.

[21] In this case it is my view that the facts objectively supported a reasonable suspicion that the defendant might be a drinking driver including:

• The time of night
• The location, being the parking lot of a plaza containing two drinking establishments and known to be a place of high incidence for drinking driving offences.
• The abrupt change of direction of the defendant's car which could be - and was - taken to be an evasive maneuver.

[22] As for the latter point re the evasive maneuver, see R v Boucher 2005 SCC 72, [2005] 3 SCR 499 where Boucher's attempt to evade the police check-stop was found by the trial judge, and supported on appeal, as being sufficient reason to reject his evidence to the contrary. In short, such an action by a driver can be highly probative of not only the suspicion, but the fact, of excessive alcohol consumption.

[23] In conclusion the detention – if there was one – was properly grounded and was therefore not arbitrary.

Arbitrary Detention Lawful at Common Law

[24] If I am wrong on the above two points and the defendant was subjected to arbitrary detention, it is my view that such detention was still permissible as a reasonable limit prescribed by the common law.

[25] Even accepting for present purposes Mr. Henderson's argument that the power to randomly stop vehicles under the Ontario Highway Traffic Act sections 48 and 216 does not apply in parking lots, the authority of the common law is not so limited. I agree with the decision of Molloy J in R v Dillon [2006] OJ No 1366 and can add little to the reasons given in that case.

[26] I note that Dillon was most recently followed by Tulloch J (as he then was) in the Superior Court in this jurisdiction in R v McLelland 2012 ONSC 926, [2012] OJ No 602. I have not been referred to any judgment from the Superior Court or higher that has dealt with this common law authority point in a manner that runs contrary to Dillon and McLelland. Accordingly, not only do I think those decisions are correct, it would seem that I am bound by them.

[27] It might be argued that the common law Dedman authority relates only to the stopping of vehicles and cannot apply to the present situation which I have found above to be a pedestrian stop. But I don't think that argument can prevail. First I note that, on its facts, Dillon was not a stop case but rather a case of police investigation of a parked vehicle. Secondly, the authority is derived from the ancillary powers doctrine and finds its justification in the purpose of the police action, being to "reduce the terrible toll of death and injury so often occasioned by impaired drivers". It is the purpose that governs the power, not the precise point in time that the power is exercised. Finally, it would be absurd to think that a driver could avoid investigative detention for sobriety check merely by getting out of the vehicle as the police approach.

Other Issues

Right to Counsel of Choice

[29] When being read his rights to counsel the defendant was uncooperative and difficult. He made noises and did not answer sensibly. When asked if he had a lawyer he wanted to call he said or started to say a name sounding like "Lefranco" or "Cheepar". He was told that if he could provide the spelling or any more information the police would be able to look for him. But he was unwilling or unable to do so. He did not pursue it and chose to call duty counsel.

[30] It is argued that the defendant's right to counsel was violated by the failure of police to do more to facilitate contact with counsel of choice. I can't agree. The request was vague and insufficient to permit any search or inquiry by the police. The defendant abandoned any further pursuit of the point and opted for duty counsel. In my view the police were not required to pursue a course that the defendant himself had abandoned.

Two ASD Tests – Delay and Right to Counsel

[31] The defendant was first approached at 12:44. He initially told the officer that his last drink was a half hour earlier. He was given the demand at 12:46 and blew a "Fail" at 12:48. At that point he said that his last drink was just 10 minutes earlier. As a result the officer waited 15 minutes and administered another test, also resulting in a "fail" at 1:03.

[32] Out of this wrinkle in the usual fabric of these investigations, counsel has developed three arguments: First it is argued that a second test required a second demand. Next, it is argued that a full 15 minute wait after the first test was excessive. Finally, it is argued that the time was such that the testing was no longer "forthwith" and the defendant should have been given his right to counsel.

[33] As for the first argument, I have not been referred to any case in support and I can see no reason why a second demand should be required. To the contrary, a demand continues until it is satisfied by provision of a suitable sample. A sample potentially contaminated by recent mouth alcohol cannot be considered suitable. Accordingly, the initial demand remained unfulfilled and was still outstanding. No second demand was required.

[34] As to waiting 15 minutes, I understand the argument to be that since the defendant said his last drink was 10 minutes earlier, an additional wait of only 5 minutes was required. But the defendant had shown himself to be completely unreliable – would the next claim be 1 minute? The officer was quite entitled to wait the full 15 minutes. It may be that she could have started the 15 minutes from time of first contact, and therefore given the second test at 12:59 rather than 1:03 – but this is splitting hairs and attempting to hold the police to a review of what took place on a standard of perfection.

[35] Finally, a delay to ensure dissipation of mouth alcohol is within the operating requirements of the screening scheme and still qualifies as "forthwith": R v Bernshaw, [1995] 1 SCR 254 (SCC). There was no reasonable opportunity to consult counsel – particularly given the hour and the defendant's lack of readily available contact information for counsel.

[36] This argument is rejected as well.

Conclusion

[37] There was no breach of the defendant's Charter rights and no illegality in the procedures followed. The case has been proven. The defendant is found guilty as charged.

November 6, 2013

B Duncan J

G Henderson for the defendant

Mr Presswood for the Crown