Court File and Parties
Ontario Court of Justice
Date: October 31, 2014
Court File No.: Ottawa 12-A11986
Between:
Her Majesty the Queen
— and —
Kelly Levi
Before: Justice Robert Wadden
Heard on: October 27 & 29, 2014
Reasons for Judgment released on: October 31, 2014
Counsel:
- Fara Rupert, counsel for the Crown
- Kimberly D. Hyslop, counsel for the defendant
WADDEN J.:
The Charge and Initial Stop
[1] On August 4, 2012 the accused was driving on a residential street in Vanier when she was stopped by Cst. Paquette of the Ottawa Police. The accused failed a roadside screening test and was transported to the police station where she gave breath readings of 130 and 120 mg alcohol/100 ml of blood. She was charged with driving with a blood alcohol level "over 80" contrary to s. 253(1)(b) of the Criminal Code.
[2] At the commencement of trial the accused brought an application alleging breaches of her rights contrary to ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. In particular, the accused alleges that her rights were violated as follows:
(a) the arresting officer lacked the necessary grounds to stop her vehicle, thus breaching her s. 9 right to not be arbitrarily detained;
(b) the arresting officer failed to advise her of the reason for the traffic stop, breaching her right under s. 10(a) to be advised upon detention of the reason;
(c) the arresting officer conducted an unreasonable search and seizure contrary to s. 8 as she lacked reasonable grounds to make the roadside screening demand and did not make it forthwith; and
(d) the arresting officer breached her s. 10(b) rights as she failed to advise the accused of her rights to counsel immediately on detention.
[3] The accused relies on s. 24(2) of the Charter to seek exclusion of the evidence obtained subsequent to the breaches.
[4] Many issues of the alleged breaches are related. The accused alleges that the arresting officer conducted a traffic stop because she was suspicious of the accused's vehicle, not for a particular Highway Traffic Act infraction. She alleges that the officer's suspicion was not objectively reasonable. As the officer demanded identification from the passenger as well as the driver, the accused alleges that the officer's actions were impermissible and resulted in an illegal stop and thus arbitrary detention. It is also alleged that the time taken to investigate the passenger and the vehicle ownership documents on the police computer resulted in an unreasonable delay in the investigation of the Over 80 offence, constituting an arbitrary detention under s. 9 and a delay in making the roadside demand "forthwith". It is alleged that s. 10(b) rights should have been provided at time of the initial stop as it was not a valid Highway Traffic Act stop, and the accused should have been informed that the reason for the stop was that the officer thought she was evading police.
[5] Much of the determination of the Charter application depends on an examination of the validity of the traffic stop.
The Vehicle Stop
[6] Cst. Paquette testified that on the early morning of August 4, 2012 she was on patrol on residential streets in Vanier when she saw the car being driven by the accused. Her attention was drawn to it due to the manner of driving – in her view it was zigzagging through the streets, taking corners quickly, accelerating where she would expect a car to slow down. In her mind, the driving pattern was suspicious, especially as much of it occurred within sight of her marked police cruiser. She saw the car drive through the neighbourhood and drop off a couple of passengers and then resume driving. She observed the car for a number of minutes, although she briefly lost sight of it. Although she did not observe any Highway Traffic Act infraction the driving pattern and her experience as a police officer led her to believe that the driver was driving in an unusual manner and was avoiding the police, leading her to suspect that the driver was committing some offence. She testified that in her view a normal, reasonable person does not drive that way, even in Vanier. Cst. Paquette activated her roof lights and stopped the car.
[7] On pulling over the car she approached the driver's door and could smell the odour of alcohol coming from the car. Cst. Paquette asked about the odour of alcohol and was told by the accused that her passengers had been drinking but that she was the designated driver. Cst. Paquette asked the accused for her licence and registration. The accused provided an expired photo licence to the officer, explaining that she had a valid temporary licence at home and was waiting for her new photo licence to arrive. She produced vehicle registration papers, which were not in the name of her or her passenger, and told the officer that she had borrowed the car from a friend. Cst. Paquette also asked the male passenger to identify himself. She testified this was her standard procedure and she was doing it so she could check to see whether he was on any conditions that he might be breaching. Cst. Paquette asked the accused to stand outside the car so she could determine whether the odour of alcohol was coming from her. While the accused stood outside her car the officer returned to her cruiser and checked the identification of the accused, the vehicle ownership and the name of the passenger on her onboard computer.
[8] The initial stop of the accused's vehicle was at 5:18 a.m. Computer logs show Cst. Paquette checked the name of the accused at 5:23. She checked the name of the registered owner and received information about him at 5:24 and 5:25. She then checked the name of the passenger at 5:26. She testified that once she determined that everything was in order she left her cruiser and went back to the accused with the intention of releasing her. She testified that up to that point she did not have a reasonable suspicion to make a roadside demand. However, when she told the accused that everything was fine with the car and her identification the accused breathed a sigh of relief and at that point Cst. Paquette detected an odour of alcohol coming from the breath of the accused. Cst. Paquette then formed a reasonable suspicion to make a roadside screening demand, brought the accused to the rear of her cruiser and made the demand at 5:32 a.m.
(a) Section 9: Arbitrary Detention
[9] The accused alleges that the Cst. Paquette had no reasonable grounds to stop her vehicle as the objective facts do not sustain the officer's perception that the car was driving erratically. The accused testified and indicated on a map, filed as Exhibit 9, that she took a direct route through the Vanier neighbourhood to drop off her friends and was not zigzagging through the streets. Cst. Paquette described the route taken by the accused on a map filed as Exhibit 2A. Although the path drawn by the accused is more complete the route described by her is virtually the same as that described by Cst. Paquette, taking into account that Cst. Paquette briefly lost sight of the accused and is not sure which street she drove on to cross Montreal Road.
[10] I accept Cst. Paquette's evidence that she observed somewhat erratic driving that drew her attention to the accused's car. The fact that the route taken by the accused was a direct route through the neighbourhood to and from her friend's house does not contradict the evidence of Cst. Paquette that she observed abrupt turns and inappropriate acceleration. Such driving can occur even on a straightforward route as described by the accused.
[11] Cst. Paquette did not observe any actual driving infraction by the accused prior to pulling her over. Her stated reason for stopping the accused's car was because of the abrupt acceleration and turning she observed which led her to think the car was evading her police cruiser. This led her to believe that the driver might be breaching bail or probation conditions or committing a driving offence.
[12] Section 216(1) of the Highway Traffic Act provides a general power to the police to stop motor vehicles. In R. v. Ladouceur, [1990] 1 SCR 1257 the Supreme Court considered whether a random vehicle stop under this section violates s. 9 of the Charter. In Ladouceur, two Ottawa Police officers had pulled over a car solely to ensure the driver's papers were in order and he had a valid driver's licence. It was admitted to be a random stop. The Court found that the random stop constituted an arbitrary detention in violation of s. 9 of the Charter but that it was demonstrably justified in a free and democratic society and thus saved by s. 1 of the Charter.
[13] The principle continues to be followed as law in Ontario and was succinctly stated by Code J. in R. v. Humphrey, 2011 ONSC 3024 as follows:
Section 216(1) of the Highway Traffic Act authorizes a police officer to stop a vehicle, even in the absence of any reasonable grounds to believe that an offence is being committed against the Act. […] random roving stops, without any articulable grounds, have also been held to be justified under s. 1 of the Charter, provided the police act on the basis of "reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle". In other words, the s. 1 justification for arbitrary H.T.A. stops depends on the officer's subjective motivation, and not on the existence of objective grounds.
[14] In this case, there is no claim that Cst. Paquette stopped the accused for any reason other than the observations of driving. The stop was not a ruse, was not motivated by racial or gender bias or conducted in a manner that was outside the ambit of the officer's public duty. It was not motivated by any prior intelligence or information the officer had about the driver or the car, which distinguishes it from R. v. Stanley, [2010] O.J. No. 5354 (OCJ). Cst. Paquette stopped the car because she had concerns about the manner of driving. Upon stopping the car she conducted a driving related investigation, checking the driver's licence, insurance and registration and confirming the driver's identification. I have no reason to doubt her explanation for stopping the car, or the logic of it. Cst. Paquette was acting within her powers under s. 216 of the Highway Traffic Act.
[15] The accused was detained at the point her car was stopped by Cst. Paquette, but as the stop was a lawful Highway Traffic Act stop the detention was not in violation of the Charter. Thereafter, all the steps Cst. Paquette took in relation to the accused were legitimate steps in furtherance of a Highway Traffic Act stop – asking for the licence and registration and investigating the obvious odour of alcohol. The time the officer spend on her police computer is documented in the computer logs and is reasonable in light of the fact that the accused had an expired licence and was driving a car that was not registered to her.
[16] Cst. Paquette did act improperly in asking the passenger for his identification and running his name on the police computer. In R. v. Harris, 2007 ONCA 574, the accused was the passenger in a car that was stopped for a Highway Traffic Act violation. He, along with the driver, was asked to identify himself; when run on the police computer he was found to be in breach of conditions and was arrested. A search revealed he was in possession of crack cocaine. The Court found that taking Harris' identifying information was a "seizure" that breached his s. 8 Charter rights. In summary, the law in Ontario since R. v. Harris is that an officer who stops a vehicle for Highway Traffic Act reasons is not permitted to ask a passenger for identification unless the passenger is also being investigated for a violation, such as failure to wear a seat belt.
[17] In this case, the Highway Traffic Act stop did not justify the actions of Cst. Paquette in conducting a broader inquiry into the passenger's identity or his status, if any, in the criminal justice system. The s. 8 rights of the passenger, not the accused, were violated when he was asked to identify himself.
[18] Counsel for the accused argues that once Cst. Paquette had violated the rights of the passenger the legitimacy of the vehicle stop ended, rendering the detention of the accused arbitrary contrary to s. 9 of the Charter. R. v. Harris does not support this argument. The Court in R. v. Harris held, at paragraph 27, that "the request that Harris identify himself, even though improper […] did not render Harris's detention arbitrary." The Court made it clear that the determination of whether the detention is arbitrary is to be found by examining the context of the stop. In R. v. Harris, the vehicle was stopped for an actual Highway Traffic Act infraction and "Harris was detained by virtue of the lawful stopping of the vehicle, the ongoing investigation of the Highway Traffic Act violation, and [the arresting officer's] lawful assuming of control over the movements of the passengers in the vehicle."
[19] In this case, the accused's vehicle was stopped pursuant to Cst. Paquette's lawful authority to conduct a stop under the Highway Traffic Act. Applying R. v. Harris, it is clear that the continued detention of the accused and her passenger remained lawful and was not affected by Cst. Paquette's wrongful request for the passenger's identification.
[20] The accused claims that Cst. Paquette's investigation of the passenger – running his name on the police computer – prolonged the length of her detention while the officer pursued an investigation unrelated to the accused, thus making that period of her detention arbitrary. I do not find that the facts support this argument. The evidence from the computer logs shows that of the three minutes the officer spent on the police computer only one minute was spent inquiring about the passenger. The enquiries about the passenger were conducted at the same time as the Highway Traffic Act enquiries about the driver and vehicle ownership. Cst. Paquette did not make a separate trip to her cruiser or engage in a separate investigation. It was all done as part of the same investigative process. On the facts before me I cannot find that there was any significant delay in dealing with the passenger, in that it took no more than a minute or two to obtain his identification and check his name against police records. The delay, if there was one, was minor and did not cause the lawful detention of the accused to become arbitrary.
[21] I find there was no breach of the s. 9 Charter rights of the accused.
(b) Section 10(a): Informing of the Reason for the Initial Stop
[22] Section 10(a) of the Charter states that an accused "has the right, on arrest or detention, to be informed promptly of the reasons therefor." The accused claims that her rights were breached because Cst. Paquette failed to advise her that she was stopped due to the officer's suspicions that she was evading police.
[23] Cst. Paquette testified that she believed the vehicle was evading her and being driven suspiciously within sight of her cruiser. Her immediate purpose in stopping the vehicle was to engage the driver and obtain and check identification, as permitted under the Highway Traffic Act. Cst. Paquette acknowledged that the accused had not committed any Highway Traffic Act offence. Avoiding a police cruiser is not, in the absence of committing a Highway Traffic Act infraction, an offence in itself. Cst. Paquette immediately asked for identification and registration when she approached the accused, and questioned the accused about the smell of alcohol. Cst. Paquette took the identification and, in view of the accused, went to her cruiser and checked information on her onboard computer.
[24] The reason for the initial detention in this case was for the purpose of identifying the driver. Cst. Paquette was not aware that the accused had committed any Highway Traffic Act or criminal offence and there was no obligation to inform her that she had been stopped because her driving seemed to be erratic. This was something that had aroused the suspicions of Cst. Paquette but was not an offence. The stop was part of general police powers under the Highway Traffic Act, not for a Highway Traffic Act offence committed by the accused. The accused, like every driver, was required to produce her licence upon demand by the police, pursuant to s. 33 of the Highway Traffic Act. The odour of alcohol required the officer to investigate possible impairment as well. There is no evidence that the accused ever asked Cst. Paquette why she had been pulled over. In her testimony the accused testified that she understood what was being asked of her and what was going on. I am satisfied that in the circumstances as the accused knew them at the time – that she was driving early in the morning after she had been out late with friends and that she was driving with an expired licence in a vehicle, not registered to her, that smelled of alcohol – that she would have been aware that she was being detained as part of the police right to stop and identify drivers and to investigate possible impairment.
[25] In R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 (C.A.) the Court stated that "a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed."
[26] There was no requirement for technical or precise wording to be used by Cst. Paquette, nor was there any requirement to inform the accused of the officer's impressions or opinions of the driving. The reasons for the stop were to produce driving documentation, and then to explain the odour of alcohol in a moving vehicle. I find the accused would have been aware of the reasons for the initial roadside stop from the questions asked of her and the requests made by the officer. There was no breach of the s. 10(a) Charter rights of the accused.
(c) Section 8: Grounds and Timing for the Roadside Demand
[27] The third ground of the Charter application alleges the s. 8 rights of the accused were breached because Cst. Paquette did not have sufficient grounds to make the demand for the roadside screening test, and the demand was not made forthwith.
[28] Cst. Paquette testified that she stopped the accused's car at 5:18 a.m. and approached the driver's door. Once the driver's window was open Cst. Paquette could smell the odour of alcohol coming from the car. When questioned about the odour the accused said that her friends had been drinking but she was the designated driver. Either at this point or in later conversation, the accused admitted to having consumed one drink. Cst. Paquette noted that the accused had glassy eyes and her face was sweaty. Once she had obtained the documents from the accused Cst. Paquette asked her to step out of the car. Cst. Paquette then went to her cruiser and made inquiries on her computer. Up to that point, she did not have a reasonable suspicion that the accused had alcohol in her body. When she walked back to the accused she intended to return her documents and release her, until the accused sighed and Cst. Paquette smelled a distinct odour of alcohol from her breath. Cst. Paquette testified that at that point she formed a reasonable suspicion and made the breath demand.
[29] There is no issue that the law, as set out in R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (C.A.), is that the time from the formation of the reasonable suspicion to the making of the demand must be no more than is reasonably necessary for the officer to discharge her duty.
[30] I accept the evidence of Cst. Paquette that she did not form her reasonable suspicion until she had returned from her cruiser's computer and the accused breathed on her. It was only at that point that the officer could determine that the odour of alcohol was emanating from the breath of the accused. After that, the only delay in administering the demand was the time it took to bring the accused to the cruiser. Cst. Paquette had ample grounds to support her reasonable suspicion, including the odour of alcohol from the breath of the accused, the admission of having consumed alcohol and the sweaty face and glassy eyes. This suspicion did not crystallize until she smelled the alcohol on the breath, but once it had crystallized the officer acted quickly in making the demand. There was no breach of s. 8 of the Charter.
(d) Section 10(b): Timing of the Rights to Counsel
[31] The fourth ground of the Charter application alleges the s. 10(b) rights of the accused were breached due to the delay of Cst. Paquette in reading the accused her right to counsel.
[32] Section 10(b) states that "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."
[33] The law is clear that s. 10(b) rights are suspended during a brief roadside detention as contemplated by a Highway Traffic Act stop and investigation. As stated in R. v. Harris, at para. 47, "the exercise of the rights guaranteed by s. 10(b) is incompatible with the brief roadside detention contemplated by a stop made for road safety purposes."
[34] The accused asks me to find that the stop in this case was not a lawful Highway Traffic Act stop and therefore the suspension of s. 10(b) rights was not triggered.
[35] The chronology of events in this case is not in dispute. Cst. Paquette stopped the accused at 5:18 a.m. had conversation with her and obtained the licence and ownership. She reviewed this information on her computer from 5:23 to 5:26 and then went back to speak to the accused. As noted above, in speaking with the accused the second time Cst. Paquette formed her reasonable suspicion and brought the accused to her cruiser. She made the screening device demand and administered the test at 5:32. The result was a fail. The accused was placed under arrest at 5:33. The right to counsel under s. 10(b) was read at 5:37, four minutes later. The police caution was read at 5:37 and the secondary caution at 5:38. The breath demand was read at 5:39. Cst. Paquette departed the scene for the station at 5:46, arriving at 5:54. Once at the station, the accused spoke to a lawyer on the phone from 6:05 to 6:20. She was turned over to the qualified technician at 6:20. The first breath test was taken at 6:24 and the second test completed at 6:46.
[36] As stated above, I have found that the detention of the accused was lawful and authorized under the Highway Traffic Act. Accordingly, again applying R. v. Harris, it follows that there was no requirement to provide s. 10(b) rights while Cst. Paquette conducted the Highway Traffic Act investigation from 5:18 to 5:26. I am satisfied that the period from 5:26 to 5:32 is reasonably explained by the actions of Cst. Paquette in leaving her cruiser, walking back to the accused, having further conversation and noting the odour of alcohol from her, walking the accused back to the cruiser and making the breath demand. As the demand was made "forthwith" the right to counsel was suspended during that time, as noted in R. v. Quansah.
[37] The remaining issue for consideration is whether the four minute delay in reading the right to counsel, between 5:33 and 5:37, constitutes a breach of the accused's rights under s. 10(b) of the Charter. In the circumstances of this case I do not find this was a Charter violation. Cst. Paquette did not question the accused or use the time to improperly further her investigation. I accept that the delay occurred while Cst. Paquette was taking steps to otherwise deal promptly with the accused and was focusing all her attention on this investigation, not improperly diverting herself to other tasks. Cst. Paquette was alone at the scene and responsible for the accused, her passenger and the vehicle. The four minute delay in reading s. 10(b) rights at the scene did not impede the implementation of the right to counsel, which the accused exercised promptly upon arrival at the police station. There is no evidence the accused was in a position to contact counsel while at the roadside, or had any desire to do so. The delay had no actual impact on the Charter interests of the accused. I note that the accused was otherwise dealt with quickly by the police, with both her breath tests completed within an hour and a quarter of her arrest.
[38] I therefore find that there was no breach of the s. 10(b) rights of the accused.
Conclusion
[39] I find that the accused has not established that her Charter rights were violated and I dismiss the Application and admit the evidence of the breath readings. This case proceeded as a blended trial and Charter application. I find that the Crown has proven its case beyond a reasonable doubt and the accused is found guilty of the charge under s. 253(1)(b).
Released: October 31, 2014
Justice Robert Wadden