Court File and Parties

Ontario Court of Justice

Date: 2013-12-12

Court File No.: Central East 12-1949

Between:

Her Majesty the Queen

— and —

Sarah Boken

Before: Justice C.M. Harpur

Heard on: August 28 and September 24, 2013

Reasons for Judgment released on: December 12, 2013

Counsel:

• M. Flosman, for the Crown
• Stacey A. Taraniuk, for the defendant Sarah Boken

HARPUR J.:

Overview

[1] Ms. Boken is charged with impaired care or control of a motor vehicle and care or control with excess blood alcohol on April 6, 2012. She was then twenty-five years old. Around 1:00 a.m. that morning, Ms. Boken was driving her father's car from Horseshoe Resort westbound on Horseshoe Valley Road. She was accompanied by her boyfriend at the time, John Stoutenburg. She and he had had dinner at the resort and then visited Ms. Boken's brother at his residence nearby.

[2] As Ms. Boken drove east on the highway, she lost control of the car. According to the civilian witnesses in a car approaching Ms. Boken's from the west, Ms. Boken's car "fish-tailed" toward them, entering their eastbound lane, and then drove onto and over the north gravel shoulder of the roadway, crashing into a ditch nose-first.

[3] P.C. Matt Brosseau arrived on scene at 12:56 a.m. He attended at the driver's door of the car and spoke to Ms. Boken. He detected the odour of alcohol on her breath. He placed Ms. Boken in the rear seat of his cruiser and continued to smell alcohol coming from her person. At 1:07 a.m. the officer made an approved screening device demand. Ms. Boken's sample produced a "fail" reading. She was arrested for the over 80 offence and, at 1:14 a.m., required by P.C. Brosseau to attend with him at the Barrie O.P.P. detachment to provide breath samples. P.C. Marek Ksenycz, an accredited breath technician, obtained samples from Ms. Brosseau with readings of 216 milligrams of alcohol in 100 millilitres of blood at 2:16 a.m. and 208 milligrams of alcohol in 100 millilitres of blood at 2:40 a.m.. Ms. Boken was also charged with the impaired offence.

[4] Her trial proceeded on September 24 and October 22, 2013. Mr. Flosman for the Crown called the two civilian occupants of the car confronted by Ms. Boken's on Horseshoe Valley Road immediately before the accident, as well as the two police officers.

[5] Prior to trial, Ms. Boken filed two applications seeking Charter relief. The applications relate to Ms. Boken's treatment by the police subsequent to her arrest. She seeks, in respect of the over 80 charge, an exclusion from the trial evidence of the excessive blood alcohol readings pursuant to Charter s. 24(2). In respect of both charges, she seeks either a stay or a stay on terms pursuant to Charter s. 24(1).

[6] Initially, Mr. Taraniuk for Ms. Boken called her evidence and that of her father Richard Boken only in respect of the Charter voir dire. Ultimately Ms. Boken gave evidence on the trial also. She said that her accident was caused by her being distracted by a text message received on her cell phone as she drove.

[7] For the reasons which follow, I find Ms. Boken guilty of the offences charged. I propose to deal first with the substantive offences, followed by the Charter issues.

The Impaired Charge

[8] Counsel agree that the law is set out in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (O.C.A.): the Crown must prove beyond reasonable doubt some degree of impairment by alcohol, from slight to great. The Crown relies on circumstantial evidence comprising (i) the accident itself; (ii) based on the officers' evidence, Ms. Boken's odour of alcohol when speaking with P.C. Brosseau and strong odour of alcohol when being interviewed by P.C. Ksenycz; (iii) based on P.C. Brosseau's evidence, Ms. Boken's momentary unsteadiness on her feet in progressing from the ditch where her father's car had come to rest to the police cruiser; (iv) based on P.C. Ksenycz's evidence, Ms. Boken's blood-shot eyes and flushed face when attending for the breath samples; and (v) based on both P.C. Ksenycz's and Ms. Boken's own evidence, her admissions to the officer that "I messed up", "I admit that I was drinking" and "I shouldn't have driven".

[9] As indicated, Ms. Boken attributed the accident to looking down momentarily at her cell phone when, as she drove, she received a text message from a friend. She said she did not feel that she was affected by the approximate three pints of beer she had consumed during the evening. She said that her remarks to P.C. Ksenycz were simply an acknowledgment that "obviously I did something wrong".

[10] Mr. Taraniuk succeeded in eliciting from the police officers the facts that Ms. Boken did not exhibit any physical signs of impairment in her dealings with them other than those referred to above, that her mental acuity seemed normal, that she was cooperative and compliant after her arrest and that the alcohol influence report completed by P.C. Ksenycz indicated that the effects of alcohol noted were "slight". As to the few physical signs, I agree with the defence submission that Ms. Boken's momentary unsteadiness as she moved in high-heeled boots from the accident scene through a ditch to the police cruiser is of limited weight.

[11] However, I agree with Mr. Flosman's submission that, although the physical indicia in this case are modest, the utterances of Ms. Boken and her patently deficient driving establish that her consumption of alcohol was a contributing factor to her impairment. As to the utterances, one might regard Ms. Boken's admissions of "messing up" and having consumed alcohol as neutral in the matter of her criminal liability. The former is ambiguous as to whether the misconduct involved alcohol or the cell phone and the latter is not necessarily an acknowledgment of misconduct. However, it is very difficult to reconcile the remark "I shouldn't have been driving" made to a police officer known to be conducting an investigation into an allegation of impairment by alcohol, as anything other than an indication of consciousness of guilt. "I shouldn't have been texting" is the remark which would have been consistent with the explanation for the accident provided to the police and advanced by the defence at trial.

[12] Even if the "proximate cause" for the accident is properly seen to be the receipt of the friend's text, the Crown's allegation of impairment by alcohol is not neutralized. Evidence of impairment of judgment is relevant and is to be found in, as Ms. Boken testified, her decision to study her phone sufficiently to discern the fact that she had received the text "what's up" from friend Megan Tulloch at a time when she was driving on a dark, curving, two lane highway approaching the headlights of an oncoming car. I accept that, at a minimum, Ms. Boken's alcohol consumption contributed to her inattention to the then-pressing demands of operating her car. The law is clear that alcohol need only be a contributing factor: R. v. Bartello, [1997] O.J. No. 2226 (O.C.A.).

The Over 80 Charge

[13] The Crown's evidence met all of the pre-requisites for reliance on the presumptions of accuracy and identity in s. 258(1)(c) C.C. for the purpose of establishing Ms. Boken's blood alcohol concentration at the time of her accident. Mr. Taraniuk did not suggest the contrary in his submissions. Subject to Ms. Boken's Charter application, this offence is also made out.

The Charter Application

[14] Ms. Boken alleges that she was mistreated by the police following her arrest in five distinct ways: (i) by their failure to attend to her complaint that the handcuffs in which she was placed following her arrest were painfully chafing her recently-tattooed right wrist; (ii) by either their failure to secure Ms. Boken's father's car, with the result that a third party took $600.00 and a case of her beer from it, or the theft of this property by the police themselves; (iii) by their failure to attend to her distress while held in the cells before and after her breath samplings; (iv) by keeping Ms. Boken in custody for approximately nine hours subsequent to the taking of her second breath sample; and (v) by photographing tattoos on her body, including two on her right abdomen and one on her lower back for which she was required to lift or move her clothing.

[15] Mr. Taraniuk submits that each of these aspects of Ms. Boken's detention was in breach of her right not to be arbitrarily detained under Charter s. 9, should result in a stay of the charges and, in respect of the over 80 charge, should result in an exclusion of the Intoxilyzer readings.

(i) The Handcuffs and Distress in the Cells

[16] Dealing first with the allegations of the police failure to respond properly to Ms. Boken's wrist pain and ongoing emotional distress, I am not satisfied on a balance of probabilities that either of these matters was drawn to the attention of P.C. Brosseau or P.C. Ksenycz so as to call for more solicitous conduct on their part.

[17] Ms. Boken testified that she spoke to P.C. Brosseau about her wrist pain when the handcuffs were applied, that she cried constantly in the cruiser because of her pain and that she complained again about her wrist to P.C. Brosseau when placed in the cell at the detachment. She said P.C. Brosseau laughed in response to her complaint at the cell.

[18] P.C. Brosseau conceded in cross-examination that Ms. Boken may have mentioned her wrist being recently tattooed and may have asked for a cream to apply to it. He said, however, that he did not recall her having done so and that she made no ongoing complaint.

[19] Ms. Boken's further evidence was that she cried and suffered obvious panic attacks in the presence of P.C. Brosseau and P.C. Ksenycz.

[20] P.C. Brosseau testified that, at the detachment, he escorted Ms. Boken to and from the call with duty counsel, to and from the breath room, and served her with various documents at approximately 5:00 a.m.. He said he would in all likelihood have noted upset or anger or crying or yelling on Ms. Boken's part and that he did not do so. His evidence was to the effect that his dealings with Ms. Boken were unexceptional and cooperative.

[21] P.C. Ksenycz's evidence about Ms. Boken's demeanour was similarly lacking in the notation of any overt signs of distress. He said he had no recollection of her making any reference to panic attacks or a need for medication or to a tattoo. The Alcohol Influence Report completed by P.C. Ksenycz and made Exhibit 3 at trial does reflect Ms. Boken's disclosure to the officer that she was taking "Ridalin/Prozac" and had last taken a dose at 6:00 p.m.. However, it also indicates that she gave a negative response to the questions of whether she was ill or injured. P.C. Ksenycz said he did not ask questions about why Ms. Boken was taking this medication because "it was her business". In sum, he said that Ms. Boken did not seem happy during her time with him but that she was not crying or otherwise showing signs of any condition requiring medical intervention.

[22] The officers gave their evidence in a straightforward manner, readily conceding in cross-examination matters to Ms. Boken's advantage such as the brevity of her stumble at the scene and the scarcity of the signs of impairment they observed. I found them to be credible and reliable and I accept their evidence.

[23] I reject the evidence of Ms. Boken that P.C. Brosseau was derisive in the face of her wrist complaint. This evidence conflicts with that of P.C. Brosseau, is not in harmony with the probabilities of the circumstances and was never put to P.C. Brosseau in cross-examination.

[24] I am led to the conclusion that, without wanting to mislead the court, Ms. Boken's recollection of the discomfort she was manifesting while in the custody of P.C. Brosseau and P.C. Ksenycz is somewhat overstated. I do not doubt that Ms. Boken was suffering in April of 2012 from depression and an anxiety disorder and, as confirmed by her father, that she had previously experienced panic attacks (most of the symptoms of which he said she kept to herself) in connection with these medical conditions. I also accept that she was experiencing considerable upset as a result of the accident and her arrest. However, I am not satisfied that Ms. Boken was, on April 6, 2012, experiencing physical or psychological difficulties requiring urgent attention or that she was suggesting such conditions to P.C. Brosseau and P.C. Ksenycz.

[25] I have addressed Ms. Boken's allegation of mistreatment by other police officers during her time in custody later in these reasons under the heading "The Delay in Ms. Boken's Release and the Photographs".

(ii) The Lost Property

[26] Turning to the allegation of police theft of Ms. Boken's property or their failure to safeguard her father's car so as to permit theft by a third party, again, I am not satisfied that either of these things is proven.

[27] Firstly, it is difficult to credit Ms. Boken's evidence that she had placed $600 in cash in plain sight in the console of the car while she and Mr. Stoutenberg dined at Horseshoe Valley Resort earlier in the evening and that she left this conspicuous and valuable roll of bills in the console, without comment, as she was taken from the car by the police.

[28] Secondly, the record does not support the idea that the police had exclusive access to the car following their arrival. Mr. Stoutenberg's actions following the accident are not accounted for. The car was towed by a towing company to their pound, not to police custody. Richard Boken testified that when he attended at the pound with Ms. Boken after noon on April 6, 2012, the driver's window of his car was down. He said, "there is a trick to closing it", which he then did. Accordingly, it seems that access to the interior of the car existed after the accident and prior to its being towed, a time when, according to witness Amanda Jones, people who had been attracted by the commotion approached the accident scene.

[29] This evidence falls short of establishing that the police engaged in any wrongdoing in the matter of safeguarding Ms. Boken's property.

(iii) The Delay in Ms. Boken's Release and the Photographs

a. The evidence

[30] Ms. Boken testified that, after being returned to the cells following the giving of her second breath sample, she asked repeatedly for her brother and then for her father. Ms. Boken did not specify of whom she made these requests. She said that she was told to sit and sleep, that she would be released in a few hours, and nothing more.

[31] Ms. Boken said that when she woke in the cell in the morning, she was visited by a police officer she had not seen previously. She said she once again asked for her father, to which the officer responded that he was retired and did not have that authority, that she would have to wait for other police officers to arrive and that, when the others arrived, she would be fingerprinted and photographed. She said that the officer seemed to want to worsen her feelings, commenting on the expensiveness of the car she had been driving, the extensive damage done to it and the advisability of her eventually pleading guilty to her charges.

[32] Ms. Boken testified that she was eventually attended by a female officer who took photographs and fingerprints. The officer photographed several tattoos on Ms. Boken's body. Ms. Boken said she provided her consent to the photographs because she felt compelled to do so. She said it was necessary for her to lift her shirt to display a tattoo underneath her right armpit and on her lower back and to pull down her pants to display two tattoos on her lower stomach. These tattoos are depicted in exhibits B, C and F from the voir dire.

[33] Ms. Boken testified without contradiction that she had never previously been involved with the police and had no criminal record. She said she was told by the female police officer that the pictures needed to be taken "in order to be put in the system". She said she was embarrassed when the pictures were taken and when she was asked by the officer to explain what each of the tattoos signified.

[34] Ms. Boken and her father testified that she was released from police custody at approximately noon on April 6, 2012. The evidence of Richard Boken was that he and Ms. Boken's mother live approximately twenty minutes from the police detachment at which Ms. Boken was being held, that he was at home and accessible throughout the night and morning of April 6, 2012, that he would immediately have come to fetch his daughter whenever he was called by the police and that he was not called until approximately 10:50 a.m. I accept this evidence.

[35] P.C. Brosseau testified that he had no recollection of discussing with Ms. Boken whether there was a responsible person to whom she might be released. He said he made no inquiry in this regard because Ms. Boken was twenty-five years of age and an apparently self-reliant adult. He also said that Ms. Boken was being held until the conclusion of his shift at 6:00 a.m. "to let her blood alcohol concentration drop", since the police were responsible for her safety and the detachment is close to a highway. He said that it would be for the supervisor on the day shift to make the decision about Ms. Boken's release.

[36] The Crown led no evidence from any officers who dealt with Ms. Boken at the detachment other than P.C. Brosseau and P.C. Ksenycz. No one else testified about the extent of Ms. Boken's complaints or her demeanour or why Ms. Boken's custody was maintained from the commencement of the day shift at 6:00 a.m. until approximately noon on April 6, 2012. Part of this time, it seems, was consumed in the photographs and fingerprinting. However, no Crown witness indicated why the identification steps were not taken between the second sampling at 2:40 a.m. and the start of the day shift. Certainly, nothing in the record disclosed any lack of physical control or comprehension of Ms. Boken's part once she was at the detachment which might have interfered with these steps.

b. Analysis

[37] Mr. Taraniuk submits that the delay in releasing Ms. Boken following the gathering of evidence by the police on the drinking/driving charges was contrary to their obligation to release Ms. Boken "as soon as practicable" pursuant to s. 497 and 498 of the Criminal Code and a breach of Ms. Boken's right not to be arbitrarily detained pursuant to Charter s. 9. I agree.

[38] Several decisions in the courts of other provinces have held that a "sobering up period" falls within the "public interest" exception in the Criminal Code provisions (see, for example, R. v. Williamson (1986), 25 C.C.C. (3d) 139 (Alta. Q.B.) and R. v. Pashovitz (1987), 59 C.R. (3d) 396 (Sask. C.A.)). However, those decisions expressly noted the absence of a responsible person available to receive the accused. That is not the case with Ms. Boken.

[39] I accept P.C. Brosseau's evidence that, given Ms. Boken's high blood alcohol readings, his decision to hold her until the end of his shift while she sobered up was a decision made in good faith for her own safety. Indeed, given the 208 milligram reading at 2:40 a.m., it was not unreasonable for the police to conclude that Ms. Boken could represent a danger to herself if released on her own even after 6:00 a.m.

[40] However, I also accept Ms. Boken's evidence that she was asking for her father repeatedly after giving her second sample and, as indicated, Mr. Boken's evidence that he was readily available. P.C. Brosseau and other unidentified officers may have felt they were dealing with a person capable - eventually - of looking after herself, but Ms. Boken was, at least to officers other than P.C. Brosseau, communicating a desire to be treated otherwise. Ms. Boken was ultimately released to her father's care without, it seems, any significant change to her physical or mental status having occurred from the time of her second sample. The evidence suggests to me that the delay in releasing her was the result of a shift change and police convenience, not necessity or any reasonable perception of necessity. Convenience is not a factor supporting a release "as soon as practicable".

[41] Similarly puzzling are the photographs taken of Ms. Boken's tattoos. Absent any explanation in the Crown's case, these were unnecessary intrusions into her privacy. Ms. Boken was cooperative and compliant. She had no known prior history with the police. She had been identified. There was no basis on which to conclude that she was a gang member or a flight risk. Thus, although there was no bad faith by the police in the taking of the photographs, the step was overzealous and constituted an arbitrary aspect of her detention. I accept Ms. Boken's evidence that she felt compelled to comply with the request of the female police officer that she lift her shirt and pull down her pants to facilitate the photographs and that she found this humiliating.

(iv) The Appropriate Remedy

[42] Mr. Taraniuk urges me to stay both charges against Ms. Boken and, in the alternative in respect of the over 80 charge, to exclude the evidence of the readings. I am not satisfied that either remedy would be appropriate in this case.

[43] As to Charter s. 24(2), I accept Mr. Flosman's submission that, the breaches I have identified having occurred subsequent to the acquisition of Ms. Boken's breath samples, the remedy of exclusion is not available. The relatively recent decision of the Ontario Court of Appeal in R. v. Manchulenko, [2013] ONCA 543 holds that, as a result of the phrase "obtained in a manner" in s. 24(2), the prospect of exclusion only exists where there is a nexus between the infringement and the evidence proposed for admission by the Crown. While the Court of Appeal held that "the essential nexus between the breach and the evidence … may be temporal, contextual, causal or the three in combination", the judgment makes clear that the evidence in question must follow the breach. In this case, the evidence in the form of the breath samples preceded the breaches. Section 24(2) has no application.

[44] Turning to the requested stay remedy, Mr. Flosman submits that, by reason of this same chronology, no stay is available. The Crown relies on R. v. Iseler, [2004] O.J. No. 4332 (O.C.A.) in this regard. There, at paragraph 31, Armstrong J.A. said the following:

While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence". I am accordingly satisfied that this is not "the clearest of cases" warranting the grant of a stay of proceedings.

[45] Mr. Taraniuk suggests, rightly in my view, that Iseler ought not to be regarded as imposing a requirement that a Charter violation precede the obtaining of evidence in order for a s. 24(1) remedy to be available. He notes that there are two discrete routes to a stay remedy, one where the accused's right to make full answer and defence cannot be remedied, and the other where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued: O'Connor v. The Queen (1995), 103 C.C.C. (3d) 1 (S.C.C.) at paragraph 82. While the first of these routes can reasonably be seen to require an infringement preceding the Crown's acquisition of evidence - thus affecting trial fairness - the same cannot be said of the matter of prejudice to the integrity of the judicial system. The latter can occur regardless of whether the Charter infringement occurs before or after the acquisition of evidence. A sufficiently egregious violation post-investigation (an unprovoked physical beating, for example) may well preclude the state's advancing a prosecution in court regardless of the merits of its substantive case.

[46] However, as the Supreme Court of Canada held in O'Connor, even where the abuse in question has caused prejudice to the integrity of the justice system, a stay is to be "granted only in those rare cases where compelling an accused to stand trial would violate the fundamental principles of justice that underlie the community's sense of fair play and decency".

[47] In short, the abuse must be one of the "clearest of cases". Here, while it may be appropriate to adjust the sentence which would otherwise be imposed on Ms. Boken as a result of a conviction for either the impaired or the over 80 offence, I do not regard the unnecessary prolongation of her stay in custody at the O.P.P. detachment, even in combination with the unjustified photographing of some of her tattoos, as qualifying for what was described in O'Connor as "a last resort". These were breaches of Ms. Boken's Charter right but they were not committed in bad faith and they fall closer to minor than to egregious on the seriousness scale. Accordingly, Ms. Boken's application for a stay under s. 24(1), like her application for an exclusion of the breath readings under s. 24(2), must be denied. I find her guilty of both offences with which she is charged.

Released: December 12, 2013

Signed: "Justice C.M. Harpur"

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