Court File and Parties

Ontario Court of Justice

Date: 2014-03-05

Court File No.: City of Ottawa 12-210938

Between:

Her Majesty the Queen

— and —

Stephan Martin

Before: Justice K. Phillips

Heard on: 12 February 2014

Reasons for Judgment released on: 5 March 2014

Counsel:

• J. Scott, Counsel for the Crown
• D. Anber, Counsel for the defendant Stephan Martin

Judgment

Phillips J.:

Stephan Martin stands charged that on the 18th day of July 2012 he drove a motor vehicle on a roadway in Ottawa while his ability to do so was impaired by alcohol. He is also charged with both dangerous driving and refusing to provide a breath sample arising out of the same day's events.

This is my decision on a Charter application. Mr. Martin seeks exclusion of all observations made of him and all information obtained from him and about him as a result of violations by the police of his rights under sections 7, 9 and 10(b). In particular, he seeks exclusion of any evidence obtained by the police relevant to the issue of identification.

In order that my ruling on the Charter complaints makes sense, I will begin by setting out the facts that I accept. In doing so I should make clear that I am applying the evidentiary onus and threshold appropriate to a Charter application and I do not want to be understood to have come to any conclusions on the ultimate issues – the trial is, after all, still underway. In deciding to accept the facts as I have outlined them below, I have obviously resolved some contradictions within the evidence I have heard thus far. I have also determined, again only insofar as is necessary and appropriate to resolve this mid-trial application, that I accept the evidence of Constable Taing as credible and reliable.

Part I - The Facts

At approximately 6 PM on July 18, 2012, Stephan Martin was in no condition to be driving a car. Unfortunately, he was doing exactly that in a rural but well-travelled part of Ottawa – Bankfield Road, First Line Road and Roger Stevens Drive. Mr. Martin's driving attracted considerable attention from other motorists. The Crown called two civilian witnesses whose evidence I accept in its entirety. Those gentlemen made clear that Mr. Martin, while driving over many kilometers on essentially rural highways, was literally careening all over the road. He would repeatedly hit the shoulder to his right and then repeatedly drift all the way across the oncoming lane to hit the shoulder on the left and then correct himself before doing it over and over again. Both witnesses described how they and several others had to take evasive action to avoid being struck by the accused in a head on collision (one fellow did a u-turn to follow Mr. Martin, so alarmed was he about almost being hit). One SUV was apparently forced off the road by the oncoming Mr. Martin such that its passenger wheels were in the ditch. Not surprisingly, several people called police. Before police could arrive to stop Mr. Martin he hit a 4 x 4 wooden signpost on the right shoulder, overcorrected and crossed the oncoming lane ending up in the opposite ditch.

Thankfully, neither Mr. Martin nor anyone else was injured in any way.

The police arrived within moments of Mr. Martin hitting the ditch, at 6:25 PM in the form of Constable Taing of the Ottawa police. The Constable immediately approached the vehicle finding Mr. Martin alone inside, occupying the driver's seat. Constable Taing started to speak to Mr. Martin, who immediately struck the officer as being "out of it" as if he was "dazed and confused". Mr. Martin was asked for his driver's license. He appeared to look around the driver's compartment and then handed Constable Taing a small cylinder containing "glucose strips". This prompted the officer to ask Mr. Martin if he is diabetic resulting in a head-nod. Constable Taing asked him if he had been drinking alcohol and received a negative response. Further, Constable Taing asked Mr. Martin if he knew what day of the week it was, to which Mr. Martin correctly responded "Wednesday" and then asked him if he knew where he was to which Mr. Martin responded "Wednesday".

While Mr. Martin's speech when talking to the officer was described as slurred and slow, Constable Taing acknowledged that he did not at that point smell any alcohol on Mr. Martin's breath and that he had no reason to disbelieve his statement that he had not been drinking. Accordingly, Constable Taing chose to treat the scenario as a diabetes-related medical emergency and summoned an ambulance.

Paramedic Thomas Naugler arrived on scene at 6:39 PM with his partner Chris Ryan. They approached Mr. Martin who was still in the driver's seat of his car and asked him if he was hurt. He indicated "no". The paramedics asked him if he would step out of his vehicle. Mr. Martin attempted to get out of his vehicle but was not able to manipulate his legs to get out on his own. Both paramedics took him by the arms and essentially walked him toward their ambulance as he was unable to walk himself. Mr. Martin was in such a compromised state that the paramedics initially worried that he may have had a stroke, or an episode of hypoglycemia. A blood sugar test and a physical exam revealed neither to be the case. Instead, in his interaction with the accused within the confines of the ambulance, paramedic Naugler found that Mr. Martin's breath smelled of alcohol. As a result, the paramedic asked Mr. Martin if he had been drinking to which Mr. Martin admitted he had had two beers that day (this exchange occurred in the presence of Constable Taing). The paramedics concluded that Mr. Martin's problems were not medical in nature and paramedic Naugler advised the police officer as much, along with a summary of their observations made while examining him, including the fact that an odour of alcohol was detected on Mr Martin's breath.

Once Mr. Martin had been medically cleared, Constable Taing reassessed the situation. In fact, the officer formed reasonable and probable grounds to arrest Mr. Martin for the offense of impaired driving at 6:47 PM. The basis for the officer's reasonable and probable grounds was summarized by him as follows:

• the call history - that is the alarmingly egregious driving behavior described by the civilian 911 callers which was conveyed to Constable Taing while en route to the scene;
• the observations Constable Taing had made about Mr. Martin's slurred speech, dazed and confused demeanor, and the inability to walk unassisted from his car to the ambulance;
• the utterance Constable Taing had overheard during the conversation between Mr. Martin and the paramedics wherein Mr. Martin admitted having had two beers;
• the information obtained by Constable Taing from paramedic Naugler to the effect that an odor of alcohol was emanating from Mr. Martin's breath.

Mr. Martin was arrested at 6:47 PM and was quickly searched and walked with assistance to Constable Taing's police cruiser and placed in the back seat. As part of his duty to search for evidence incident to arrest, Constable Taing conducted a search of Mr. Martin's car between 6:48 PM and 7 PM. That search resulted in the seizure of two empty beer cans from the passenger side floor as well as a mostly empty 1.5 L bottle of rum which was within a cooler filled with ice and some cola (proximate to some drinking cups) on the floor on the back seat passenger side. The cap on the rum bottle was unsecure and came off when the officer picked the bottle up. The officer returned to his cruiser at 7 PM and made some notes about the events that had led up to Mr. Martin's arrest, a process that lasted until 7:10 PM.

It was thus at 7:10 PM that Constable Taing endeavored to inform Mr. Martin about his right to counsel pursuant to section 10 of the Charter. As well, at 7:11 PM, 7:12 PM, 7:13 PM, and 7:20 PM Constable Taing tried to inform Mr. Martin of the standard police caution, the secondary caution, the 524 warning, and the breath demand respectively.

None of the information outlined above was received in any meaningful way by the detainee. Sometime after being put in the back of Constable Taing's cruiser, and at least from 7:10 PM onward, Mr. Martin was passed out, unconscious. The officer made various attempts to rouse him by shouting and banging on the cruiser's partition but to no avail. In the result, therefore, Constable Taing engaged in a rather absurd exercise of reading rights to a man who was out like a light, not because he thought it would be of any use but because he thought it was his duty to do so.

At 7:21 PM Constable Taing left for the Ottawa police central cells at 474 Elgin Street. While en route he heard moaning from the back seat prompting him to pull over to check on Mr. Martin. Mr. Martin was still "out" but the officer was able to determine that the handcuffs might have been too tight and adjusted them. Once they were back on their way, the next stirring Constable Taing heard from Mr. Martin was when he vomited all over his chest.

The pair arrived at the Ottawa police station at 7:51 PM. Constable Taing, with help from a colleague, assisted Mr. Martin into the cellblock as he could not stand on his own. The sergeant in charge took one look at Mr. Martin and refused to receive him into the cells, ordering Constable Taing to take him to the hospital instead. At 8:01 PM they left for the Ottawa General hospital arriving at 8:17 PM. Once at the hospital the officer helped Mr. Martin inside as he could not walk on his own and in fact elected to put him into a wheelchair. At some point thereafter Mr. Martin tried to get up to stand and nearly fell forward onto his face (he was handcuffed to the rear). Constable Taing had to catch him before he did so.

At 8:50 PM Constable Taing began an interview with a qualified breath technician, Constable O'Connor, who was at the hospital to receive a sample of Mr. Martin's breath into an approved instrument. The purpose of that interview was for the arresting officer to convey to the breath technician the grounds for the arrest and breath demand.

At approximately 9 PM Mr. Martin was introduced to Constable O'Connor by Constable Taing. As is apparently his regular practice, Constable O'Connor began by reiterating the standard police breath demand to the detainee (it was conceded that there is no issue with respect to the wording of the demands). As well, as is also apparently his regular practice, Constable O'Connor read to Mr. Martin the standard police informational speech about rights to counsel (it was conceded that there is no issue with respect to the wording of the rights to counsel). Constable O'Connor went further and spoke in general layman's terms to Mr. Martin about the usefulness of a call to a lawyer in this context. He indicated to Mr. Martin that he could make a private phone call to a lawyer without charge and that it would be a good idea for him to do so. Notwithstanding some five entreaties on the part of Constable O'Connor to Mr. Martin to call a lawyer, he declined to do so.

Constable O'Connor had an approved instrument which was in his opinion in proper working order. He explained what would be required of Mr. Martin to provide a sample of his breath into it. Mr. Martin made it clear that he had no intention of complying. Constable O'Connor advised Mr. Martin that he would be charged with refusing to provide a breath sample and that the penalty for that offense is essentially the same as for blowing over the legal limit. Despite being given several opportunities, and being cajoled to do so in a variety of ways, Mr. Martin refused to blow.

It should be noted that in his dealings with Mr. Martin, Constable O'Connor saw that his eyes were glossy and that his speech was sometimes incoherent. When asked about Mr. Martin's balance Constable O'Connor indicated "he could barely walk, he was staggering, very very unsteady". The odour of alcohol was present on Mr. Martin's breath. Constable O'Connor, a very experienced police officer, described Mr. Martin as one of the top five impaired subjects he had ever seen. Translating things into the colloquial, the Constable described Mr. Martin as "sloshed".

At 9:55 PM Mr. Martin was released from the hospital and was returned to the police station because in the view of Constable Taing he was still too intoxicated to be safely released. As if to prove this point, once at the police station Mr. Martin used the washroom and ended up unintentionally urinating all over everything but the toilet. In any event, he was released at 11:45 PM to the custody of his wife.

Part II - The Charter Issues

1. The applicant asserts that Constable Taing violated his section 7 and section 9 rights because he arrested the applicant without reasonable and probable grounds to believe that his ability to operate a motor vehicle was impaired by alcohol.

2. The applicant asserts that Constable Taing violated his section 7 and section 9 rights because he detained the applicant pursuant to section 253(3)(b) of the criminal code for the purpose of compelling the applicant to accompany him for a breath test but did not comply with the statutory precondition of making the demand to do so "as soon as practicable".

3. The applicant asserts that Constable Taing violated his section 10(b) right by not providing the informational component of rights to counsel immediately upon his arrest.

4. The applicant asserts that Constable Taing violated his section 10(b) right by not providing the informational component of the right to counsel in a meaningful way.

Part III – Issue By Issue Analysis

Charter Issue #1: Arrest Without Reasonable and Probable Grounds

The applicant asserts that Constable Taing violated his section 7 and section 9 rights because he arrested the applicant without reasonable and probable grounds to believe that his ability to operate a motor vehicle was impaired by alcohol.

For an officer to make an arrest he must have reasonable and probable grounds to believe that an offence has been committed. That belief must be both subjectively held and objectively reasonable. Reasonable and probable grounds is a threshold higher than a hunch or reasonable suspicion but it is not tantamount to proof beyond a reasonable doubt (see: R. v. Bush [2010] O.J. No.2453 (Ont. C.A.)).

I find that Constable Taing believed he had evidence that Mr. Martin had committed the offense of driving a motor vehicle while his ability to do so was impaired by the consumption of alcohol. More importantly, I find his belief in that regard to be objectively reasonable in the circumstances. The Constable had more than enough information to make the arrest he did. He had been informed that citizens had observed the accused to be driving erratically, literally all over the road. He heard the accused speech to be slow and slurred. He found his demeanor to be dazed and confused. He watched the accused have to be walked to an ambulance by paramedics. He heard the accused admit to having consumed alcohol that day. He was told that the odour of alcohol could be detected on Mr. Martin's breath.

In my view, to have not arrested Mr. Martin in the context here would have amounted to dereliction of duty.

Charter Issue #2: Timing of Breath Demand – "As Soon as Practicable"

The applicant asserts that Constable Taing violated his section 7 and section 9 rights because he detained the applicant pursuant to section 253(3)(b) of the criminal code for the purpose of compelling the applicant to accompany him for a breath test but did not comply with the statutory precondition of making the demand to do so "as soon as practicable".

Section 254(3) of the Criminal Code directs that if a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person to provide as soon as practicable a sample of his breath.

In my view, Parliament enacted the section in this way to ensure that those who are arrested for driving after drinking too much receive prompt information about the extent of liberty infringement they are in for. The "as soon as practicable" requirement for a breath demand is an effort to ensure that an arrested citizen is not kept in the dark about what is going to happen to him - whether he might be released or taken in and if so for what purpose and under what sort of schedule. It is also another iteration of the overarching intent of the statute to cause breath samples to be taken according to an expeditious timeline.

However, the concept of "as soon as practicable" does not mean "as soon as possible". Rather, "as soon as practicable" means within a reasonably prompt time given the particular circumstances of a given case (see: R. v. Squires (2002), 166 C.C.C. (3d) 65 (Ont. C.A.)). It is trite to say that all cases are to be determined on their unique facts.

It is true that Constable Taing did not read the breath demand to Mr. Martin immediately after the arrest at 6:47 PM. In the result, he read it only at 7:20 PM some 33 minutes later (at least 10 minutes after Mr. Martin had passed out). Clearly, Constable Taing missed a closing window of opportunity to convey information to Mr. Martin while they were together at the scene.

I find that Constable Taing's decisions to conduct a search of the motor vehicle incident to arrest and to make notes prior to reading Mr. Martin the breath demand were unreasonable in the circumstances. While it is true that he was alone and had a lot on his plate, his actions disclose a lack of appreciation of the time pressure that Parliament wished to put upon the police via the wording of section 254(3). The Martin car and its contents were not going anywhere. The quality of the notes would not have been meaningfully affected if their commencement was delayed for a few minutes.

The police officer here had many tasks to perform, from reading information to searching for evidence to making notes. However, it is important that the police prioritize things as they have been prioritized by Parliament. Unless compelling reasons exist for putting them second, the informational requirements mandated by law as time sensitive must come first. Constable Taing should have read Mr. Martin the 254(3) demand before searching the vehicle and writing at length in his notebook. His decision to do things in a different order caused the demand to occur roughly a half-hour after it could have. Such a delay in my view is not "as soon as practicable". In these circumstances, the result of non-compliance with the statutory regime is a breach of section 9 of the Charter.

Having found a Charter breach, however, I would not exclude any evidence as a result of it.

This case involves a level of intoxication at the extreme end of the spectrum that one sees in the criminal justice system. Mr. Martin was literally falling down drunk. At the time proximate to his arrest, he was dazed and confused and was mere minutes away from losing consciousness. While I would never suggest as a general proposition that those who are intoxicated should automatically get a diminished degree of information vis-à-vis their legal rights, I am inclined to the view that in this particular case, any failure by the police to convey information to Mr. Martin should be assessed having regard to Mr. Martin's evident inability to meaningfully receive that information. The effect, therefore, of the Charter breach on Mr. Martin's real, actual interests was negligible.

The non-existent impact on Mr. Martin's actual interests is especially so given that he was not in custody solely on a 253(b) arrest. Regardless of whether the police failed to comply with section 254(3) in pursuit of breath samples, it must not be overlooked that he was also subject to suspension of his liberty as a result of being properly arrested for an offence under section 253(a). When the police have two reasons to arrest someone and drop the ball with respect to only one of them, the effect on the actual interests of the individual can be merely academic. I find that to be the case here.

I also note that later, after Mr. Martin had at least had some time to begin to sober up, Constable O'Connor reiterated the breath demand to him. Clearly, before he was put to his decision as to whether or not to blow, he was advised of the police demand that he do so.

The analysis as mandated in R. v. Grant (2009) SCC 32 – weighing the real impact of the events on the actual interests of the applicant, as well as the fact that the police acted in good faith at all times, as well as society's interest in adjudicating on the merits in a case involving such attention-grabbing alleged misconduct - tilts against exclusion of anything.

Charter Issue #3: Failure to Provide Rights to Counsel Immediately Upon Arrest

The applicant asserts that Constable Taing violated his section 10(b) right by not providing the informational component of rights to counsel immediately upon his arrest.

I agree that in deciding to prioritize the search of the vehicle incident to arrest and the making of notes, Constable Taing breached Mr. Martin's right under section 10 of the Charter to be informed of his right to counsel upon arrest or detention. As has been made clear in R. v. Subaru 2009 SCC 33, [2009]2 S.C.R. 460, absent exigent circumstances like officer safety concerns or the pursuit of evidence that might reasonably be lost if not immediately obtained, detainees are to be informed of their right to counsel immediately upon arrest.

However, in the circumstances of this case I would not exclude any evidence as a result of this Charter breach.

I find the effect of the section 10 Charter breach on Mr. Martin's actual interests to be negligible at best. As outlined above, I am of the view that Mr. Martin's extraordinary degree of intoxication is a relevant consideration when assessing the effect of his not receiving information about his legal rights. Mr. Martin was in no condition to understand anything. His not receiving information about his right to counsel was therefore of no real consequence.

I also take great comfort in the fact that prior to Mr. Martin being compelled to blow into the approved instrument, and after he had presumably had some time to sober up slightly, the breath technician reiterated the rights to counsel. Mr. Martin declined to avail himself of his right to a lawyer thus demonstrating the non-effect of the earlier breach.

I find that the police at all times acted in good faith. The fact that they breached Mr. Martin's section 10 charter right was as a result of simply a failure to properly choose from among a menu of important duties. Constable Taing wrongly preferred other important tasks over the all-important section 10(a) requirement. While I have found that to be a mistake on his part, it is not the sort of conduct that this court would want to disassociate itself from.

The breach when viewed in the context of the case overall pales in comparison to the strong public interest in a trial on the merits.

Charter Issue #4: Failure to Provide Rights to Counsel in a Meaningful Way

The applicant asserts that Constable Taing violated his section 10(b) right by not providing the informational component of the right to counsel in a meaningful way.

This final Charter complaint is somewhat related to the last one. The applicant contends that his section 10 Charter right was infringed because the officer did not read the rights to counsel during the time when he was conscious. The applicant asserts that the officer reading him rights to counsel while he was passed out was so ridiculous as to amount to disregard for the Charter protections enshrined in section 10. The applicant further asserts that the officer could have made better effort to rouse him either when they had pulled over to adjust the handcuffs or at some other time.

I agree that a police officer reading rights to a detainee who is evidently unconscious is absurd. In fairness to Constable Taing, however, I accept that he did this because he felt he had to read the relevant passages no matter what. I accept that he was acting in good faith when he read from his notebook to an unconscious man.

I note again that the police endeavored to reiterate the right to counsel to Mr. Martin later at the police station once his condition had slightly improved.

I have already decided the effect of the delay with respect to the reading of the rights to counsel. This complaint relates to the police handling of the diminished capacity of the detainee. In my view, it is important to keep in mind that the diminished condition of the accused was not caused by any actions by the state. The fact that Mr. Martin was in no condition to meaningfully receive his rights to counsel was not the doing of the police.

The authorities cannot be held responsible for the effects of self-induced intoxication. The fact that Mr. Martin had incapacitated himself via alcohol consumption is his problem. The consequences of that problem are not breaches of the Charter.

Part IV – Conclusion

While I have found breaches with respect to sections 7, 9 and 10 of the Charter, I have decided against excluding any evidence.

Released: March 5, 2014

Signed: "Justice Phillips"