Court File and Parties

Ontario Court of Justice

Date: November 13, 2014

Court File No.: Toronto 4817 998 13 5952

Between:

Her Majesty the Queen

— and —

Mohd Omar Oryia

Before: Justice W. B. Horkins

Heard on: October 6, 2014

Reasons for Judgment released on: November 13, 2014

Counsel:

• Mr. Bryan Pillon and Ms. Jennifer Caskie, counsel for the Crown
• Mr. Richard Posner, counsel for the defendant Mohd Omar Oryia

HORKINS W.B. J.:

Introduction

[1] The accused, Mohd Omar Oryia, was tried before me at Kitchener on a charge of driving while disqualified. The trial proceeded, blended with a voir dire to determine certain alleged Charter breaches.

[2] In the latter stages of the investigation the accused's 10(b) rights were breached when he was detained in the officer's car and questioned for at least half-an-hour prior to being advised of his rights to counsel. This breach occurred after the police had all the evidence in support of the charge before the Court. The detention itself was entirely justified and the investigative questioning had nothing to do with this charge. The difficult question arises as to what, if any, remedy is now available to the accused. The applicant asks that the evidence gathered prior to the breach be excluded on the basis that the breach taints the entire occurrence.

[3] Although there are significant portions of the facts that are in dispute, a general overview is both possible and sufficient to set the context of this issue.

The Facts

[4] The events took place October 4th, 2013. Omar Oryia had borrowed his father's car and was returning home from a doctor's appointment when he noticed that he was being followed by a Waterloo Regional police cruiser. Officer Palubiski gave evidence that he detected the smell of burning marijuana and suspected that it was coming from one of the two cars that were just ahead of him. He decided to follow the closest car, the accused.

[5] The accused was worried, as he should have been, because he was in fact prohibited from driving as a result of an earlier conviction for drinking and driving. In an effort to avoid the police he turned onto a side street and then down another street, which happened to be a dead-end. His evidence on the application was that he did this to evade the officer. Unfortunately for him, this experienced officer in fact interpreted this maneuver as just what it was: an evasive maneuver. Knowing that the accused had entered a dead-end, the officer decided just to wait for the car to re-emerge. As expected, a few minutes later, the accused drove back out of the dead-end; the officer followed and pulled him to the side of the road.

[6] During the ensuing roadside investigation it was immediately apparent that there was no marijuana and that the accused had not been the source of any marijuana smoke. However, the initial roadside investigation did quickly confirm that the accused was a prohibited driver and so was arrested for that offence, cuffed and placed in custody, in the rear of the officer's cruiser. The accused was clearly "detained" at this point in time and the officer's obligation to advise him of his right to counsel was triggered.

[7] During the following half-an-hour or so, the officer searched the accused's car twice and engaged in ongoing investigative questioning of the accused on matters totally unconnected to the drive while disqualified charge, all without ever advising the accused of his right to counsel, or in any way facilitating access to counsel. When the accused was eventually advised of his rights and said he wanted to call a lawyer, he was told that he would have to be taken to the police station to do that. The arresting officer had already decided to release the accused with an Appearance Notice and so, not surprisingly, the accused chose to be released at the roadside, rather than be taken in custody to a phone at the police station.

The Charter Application

[8] The Charter application is twofold and is based on the submission that there were serious violations of both the section 9 right against arbitrary detention and the section 10(b) right of being advised of the right to contact counsel, having that contact facilitated and having the officer hold off on further investigative questioning in the meantime.

[9] The section 9 claim is based on the submission that the initial stop was no more than a hunch. The obvious 10(b) breach is conceded by the Crown; however, the seriousness and impact of it is contested. The Crown submits that there was no section 9 breach at all.

[10] The applicant does not seek a Stay; essentially conceding that the offending conduct here is not of a sufficient nature and degree to warrant such an extreme remedy. Rather, the applicant seeks exclusion of the evidence of the identity of the accused that was gathered prior to the commission of the 10(b) violation.

[11] On an application for a section 24 remedy the burden of proof lies on the applicant on a balance of probabilities. When a breach is established, the entitlement to a remedy and the nature of the remedy requires findings of fact to engage in the Grant analysis, assessing the seriousness of the breach, its impact on this accused, and the countervailing interest in there being a trial on the merits despite the Charter breach.

Section 9 Breach Allegation

[12] The section 9 breach allegation can only succeed if the applicant establishes on a balance of probabilities that the initial stop was based on no more than a hunch.

[13] The officer's evidence was that his first attention was drawn to the accused as he followed in his car. The officer says that he smelled burning marijuana coming from the accused's vehicle, or a second vehicle that was just slightly ahead of the accused. The officer's evidence was that he decided to follow the accused, the closer of the two cars. Then, once that car took evasive action, he decided to stop it and investigate.

[14] The officer's evidence is that once he had the car pulled over, he ran the plate and learned the name of the registered owner: the father of the accused. The officer was familiar with the accused's last name from a fraud investigation a few years earlier. The officer also gained the information that a driver associated with the plate, the accused, was a prohibited driver. According to the officer, the sum total of his basis for further investigation was that he had good reason to believe that he might have a prohibited driver driving a car, while smoking marijuana. This seems to me to be a reasonably based suspicion. The officer went to the car and asked for the license, ownership, and insurance. The accused identified himself but claimed not to have his license with him. Once the accused identified himself, there were clearly reasonable and probable grounds to believe that he was committing the offence charged. The officer went back to his cruiser and confirmed that Mohd Omar Oryia was indeed disqualified from driving. He then returned to the accused and arrested him.

[15] In cross-examination, it was established that the officer realized immediately that there was no marijuana. That there was no smell or other indicia of marijuana whatsoever. The officer was either wrong about the smell or had followed the wrong car. The officer never mentioned anything about marijuana to the accused.

[16] If the officer smelled marijuana, or honestly and reasonably believed that he did, that together with the subsequent evasive maneuvers would justify the investigative stop of the accused. On the other hand, if the smell of marijuana is a fabrication, then not only would the basis of the stop be reduced to a mere hunch, but that fabrication would significantly and generally taint the officer's credibility and claim of bona fides through this investigation.

[17] The burden is on the applicant to establish the factual foundation for a finding of breach, and I am not persuaded to a sufficient degree to conclude that this officer was fabricating the marijuana smell. The officer says that he smelled marijuana coming from the car ahead. I have to agree with Mr. Posner that this does strike me as a remarkable feat. However, I think that if an officer was inclined to fabricate some fact to feed a foundation for a traffic stop, something far less exotic would do, like a failure to signal. I find that the officer's evidence taken as a whole has the ring of truth, and I do not believe that I have anywhere near a sufficient basis to reject his evidence concerning the foundation for his initial investigation of the accused. The evasive driving was not contested; in fact, it was confirmed by the accused in his evidence on the voir dire. The officer has several years of experience and again, I have accepted his evidence that the accused's evasive behavior amplified his interest to a level of reasonable suspicion sufficient to justify pulling over the accused.

[18] Once the accused was stopped, the officer received the additional information that there was a prohibited driver "associated" with the registered owner of the car, his son, the accused. With all of that accumulated foundation the officer was entirely justified investigating further, which he did.

[19] The claim of a section 9 breach is not established.

Section 10(b) Breach Allegation

[20] Section 10(b) was clearly breached in this case and this was conceded by the Crown in advance of trial. However, the Crown disputes the seriousness of the breach, the extent of its impact on the accused, and the availability of a remedy.

[21] The mandate for the police with respect to 10(b) "rights to counsel" is to advise the detainee of his rights, facilitate access if requested, and to hold off on attempts to illicit incriminating evidence from the detainee until advice has been provided. These obligations are triggered immediately upon detention.

[22] This officer understood his obligations and acknowledged at trial that he had erred in this case. My understanding of his evidence was that this was an inadvertent error brought about by his attention to following up on some further curiosities that he was presented with.

[23] When initially asked for identification, the accused told the officer that he had forgotten his wallet. However, after the accused was cuffed and placed in the cruiser, the officer did a cursory search of the area of the driver's seat and found not one, but two wallets. One wallet contained a significant amount of cash. The officer questioned the accused about there being two wallets, why he had lied about not having his wallet, why there was so much cash and who the person was whose "ID" was in the second wallet. This questioning of the accused, and a further search of the car, went on for much of the 30 or more minutes prior to the officer advising the accused of his rights to counsel. When the accused was advised of his rights to counsel, he responded that, yes, he wanted "a lawyer." The accused was told that he was going to be released from the roadside. His car had been impounded. If he wanted to call a lawyer he would need to go to the station, in custody. Not surprisingly, the accused chose to be released instead.

[24] The half hour or so of investigative questioning, while the accused was detained in the rear of the police car, was a clear violation of 10(b) which requires that the rights to counsel be given immediately upon detention and that questioning be held off while contact is facilitated. The s. 10(b) violation is made out.

The Question of a Remedy

[25] The accused seeks the exclusion of the evidence that was obtained prior to the breach having occurred. The relevant part of s. 24(2) of the Charter provides:

Where, ... a court concludes that evidence was obtained in a manner that infringed or denied any right or freedom guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. (Emphasis added)

[26] The only evidence tendered by the Crown in this trial was itself lawfully obtained prior to any breach occurring. The threshold question in the analysis is whether evidence obtained prior to a breach comes within the meaning of the wording in s. 24(2) as having been "obtained in a manner" that breached the accused's Charter rights. The jurisprudence establishes a generous approach.

[27] In R. v. Strachan, 67 C.R. (3d) 87, the Supreme Court held that the focus should be on the entire "chain of events," and that as long as the connection was not too remote, then the evidence could be considered as having been "obtained in a manner" that infringed the Charter right.

[28] In R. v. Phala, [2004] OJ 3484, at paragraphs 44 and 45, Justice Doherty stated the following:

44 There are two components to s. 24(2). The first is a threshold requirement. The impugned evidence … must be obtained "in a manner that infringed" a right under the Charter. If the threshold is crossed, one then turns to the evaluative component of s. 24(2) -- could the admission of the impugned evidence bring the administration of justice into disrepute?

45 The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart, 107 C.C.C. (3d) 481.

[29] These comments in Phala were adopted and approved by the Supreme Court in R. v. Witter, 2008 SCC 33, [2008] S.C.J. 33 at paragraph 21, which in turn was applied by the Ontario Court of Appeal in R. v. Simon, 2008 ONCA 578, [2008] O.J. 3072 at paragraph 65. In Professor Don Stuart's book Charter Justice in Canadian Criminal Law, 6th ed., there is an informative discussion to the same effect at pages 639 to 645.

[30] The facts before me reverse the more usual question of whether subsequent Charter compliance can remove the taint of an earlier breach. Here we have evidence obtained prior to any Charter offending conduct and the submission made that the subsequent breach works back in time to infect the entire occurrence.

[31] In R. v. Garrick, 2014 ONCA 757, [2014] O.J. 5172, the accused alleged post-arrest police misconduct and sought to exclude evidence seized in the investigation prior to his arrest. The Court of Appeal upheld the trial judge's refusal to continue into a lengthy voir dire where there was clearly insufficient linkage between the alleged post-arrest misconduct and the evidence that the accused sought to exclude.

[32] In R. v. Rowson, 2014 ABQB 79, an accused was detained in the back of a police cruiser for half-an-hour without being given "his rights." The evidence of his statement obtained prior to the breach was excluded; but breath test evidence gathered after his rights to counsel were given, was admitted. The entire occurrence was not tainted by the earlier violation.

[33] In R. v. Mack, 2014 SCC 58, the Supreme Court considered a "Mr. Big" operation that included wiretaps obtained in violation of s. 8 of the Charter. None of the unlawfully obtained evidence was tendered at trial. The Court upheld the trial judge's conclusion that the confession, which was tendered at trial, had no casual connection to the simultaneously occurring illegal wiretap and, in the context of the full investigation, was not "obtained in a manner" infringing the accused's Charter rights. The existence of the improper wiretap did not taint the entire case.

[34] On the facts before me in this case, I find that the connection between the 10(b) violation and the previously obtained evidence supporting the driving disqualified charge is too tenuous to trigger exclusion under s. 24(2). There is no casual connection here between the breach and the evidence tendered at trial. I acknowledge that there is a temporal and contextual connection, in the sense that the time frame of the breach was an unbroken continuation of the same investigative stop. However, the drive disqualified part of this case was over and done when the accused was then held and questioned concerning entirely different issues. The further detention and questioning itself arose from legitimate investigative concerns.

[35] I find that the evidence actually tendered in support of this prosecution is untainted by the subsequent failure of the officer to advise and facilitate the accused's "rights to counsel" in a timely fashion. I find that the evidence in support of the charge of driving while disqualified is admissible and that the accused is guilty as charged.

Consideration of Alternative Remedies

[36] Having failed to clear the s. 24(2) threshold question of being "obtained in a manner" violating the accused's Charter rights, the evaluative aspect of s. 24(2), the Grant framework of analysis, is not trigged. However, that analysis is still a useful exercise in assessing the desirability of an alternative remedy.

[37] This was a serious breach of this accused's Charter rights. The right to access counsel is perhaps the most important and fundamental right for someone detained by the police. This constitutional right is designed to protect a detainee from the extreme imbalance of power in any form of detention by state authorities. The advice of counsel is often the key to the protection of all other rights. This officer knows, and knew at the time, that the right to counsel is triggered immediately upon detention, and he yet failed in his responsibility in this regard by not fulfilling his obligations for over half-an-hour. During that half-an-hour, the accused's car was searched and the accused was questioned extensively.

[38] The seriousness of the conduct is mitigated somewhat by my conclusion that, in my opinion, there was no malice intended, no mala fides or bad faith. This was a distracted oversight by an officer following up on further, unrelated concerns presented by the circumstances as a whole.

[39] The impact on the accused was significant in the sense that he was denied legal advice at a time that he certainly needed it. On the other hand, the impact of this breach was not at all prejudicial in terms of the fairness of this trial. As it turned out, no incriminating evidence was in fact precipitated and nothing resulted by way of any additional charges.

[40] There is a very high public interest in these cases being adjudicated on the merits. The disqualification of drivers convicted of drinking and driving is vitally important to the effort to stop impaired driving and to protect the public from those who engage in such conduct. Like drinking and driving cases, the offence of breaching a driving prohibition arising from a drinking and driving conviction is a high priority offence in terms of the public interest in seeing a trial on the merits. The comments by the appellate courts about the daily "carnage on the highways" elevating the public interest in impaired driving cases being tried and determined on their merits, applies equally to cases of driving while disqualified as a result of a drinking and driving conviction. These are cases of some gravity and a deterrent jail sentence is often the result upon conviction.

[41] Balancing these factors would weigh in favor of admitting the evidence had I found it to have been "obtained in a manner" infringing the accused's Charter rights. This exercise also helps the Court to describe the relative seriousness of the breach in terms of the need for some form of proportionate remedy.

[42] The purpose of a Charter remedy is not to punish the police or to compensate the accused, but rather to ensure both trial fairness, and to protect the reputation of the administration of justice. This matter cannot be left without some remedy for the accused that recognizes the seriousness of the s. 10(b) violation, in particular the improper investigative questioning of the accused while detained. To do so would tend to bring the administration of justice into disrepute.

[43] In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. 6, the Supreme Court endorsed the remedy of a sentence reduction based on Charter violations, at least where the violation has some connection as a mitigating circumstance.

[44] The situation in the case before me is somewhat similar to cases of "over-holding;" that is where an accused has been arbitrarily held in custody for an inordinate period of time following the completion of their breath tests. In those cases the appropriate remedy has been a sentence reduction.

[45] In R. v. O'Neill, 2013 ONCJ 216, [2013] O.J. 1899, at paragraphs 39 to 46, I discussed and applied a sentence reduction in an "over-holding" case:

39 Mitigation of sentence, or a sentencing discount, has been approved as a legitimate form of Charter remedy. However, where, as here, there is a statutory mandatory minimum sentence there may be little room for a meaningful discount.

40 In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, a driver was arrested for impaired driving then beaten by a police officer and denied medical treatment. He pleaded guilty to the impaired driving charge and had the minimum fine waived as a remedy. On review, the Supreme Court held that the trial judge erred in waiving the statutory minimum fine as a form of constitutional exemption. However, the Court did endorse taking the state misconduct into account on sentence and they endorsed the imposition of a conditional discharge, together with the mandatory minimum fine.

41 In Price, an over-holding case factually similar to this case, Justice Durno approved of the trial judge providing a remedy by way of sentencing the offender to "time served" instead of imposing the mandatory minimum fine. Although obiter, Justice Watt's reasons at the Court of Appeal application for leave, [2010] O.J. No. 3258, may be read as affirming that this was indeed an appropriate remedy.

42 In our high volume plea court we regularly grant pre-trail custody credit to offenders for each calendar day spent in custody. An overnight stay in the lock-up is counted for two days credit. Ms. O'Neill is therefore entitled to at least two days pre-trial custody credit as against her sentence. The harsh conditions and unlawful nature of her detention justifies an enhanced credit multiplier of 1.5. She is entitled to a pre-trial custody credit of at least three days. The Code provides for a range of sentence, from a mandatory minimum $1000 fine up to a maximum period of imprisonment of 18 months.

43 On the sentencing hearing in this case, the Crown asked the Court to consider a sentence of a fine slightly exceeding the $1000 minimum and suggested that I could then reduce the fine to the $1000 mark as a sentence reduction remedy. This is not an unreasonable approach.

44 In my view, the mandatory minimum is not a starting point but rather a mandatory block on the spectrum of otherwise available sentences. In light of the multiple collateral penalties flowing from a conviction for drinking and driving, the fine itself is often the least of the consequences for most accused and pales in comparison to the combined effect of having a criminal record; exposure to a mandatory jail sentence for a subsequent offence; the mandatory driving prohibition; the suspension of license; the interlock program; and the impact on insurance rates; not to mention the legal fees involved.

45 Bearing all of this in mind, and considering that Ms. O'Neill has at least three days of pre-trial credit, it is my view that, as in Price, "time served" is an appropriate sentence in this case. I consider a two- to three-day sentence to be more severe than a fine in the $1000 to $1500 range.

46 Giving credit for "time served" strikes me as a remedy that is particularly "appropriate and just in the circumstances" where the Charter breach itself was actually an unlawful period of detention.

[46] In a sense this accused 'served time' while he was detained and improperly questioned without the benefit of his rights to counsel. I, therefore, consider that a modest sentence reduction is an appropriate means of attempting to protect the reputation of the administration of justice. It is important for the Court to disassociate itself from the police failure regarding this accused's "rights to counsel," and make it clear that the violation of Charter rights is taken seriously.

[47] The accused accepted full responsibility for his actions and was contrite and remorseful. I had the benefit of observing Mr. Oryia give evidence on the Charter Application. He was forthright, articulate and direct in acknowledging the facts. This case was litigated on a narrowly focused legal issue.

[48] The accused is 26 years old. He is a qualified electronics technician and in his present circumstances, he is essentially now supporting his parents. Some years ago he had anterior cruciate ligament (ACL) surgery and now suffers with chronic pain. On the day of the offence, he had a doctor's appointment and made the bad decision to drive rather than take the bus.

[49] I think I am safe in taking notice that these proceedings, and the collateral consequences of the conviction, have had, and will have, a significant financial impact on both the accused and his family. Amongst other things, this conviction will trigger a lengthy driving suspension under the Highway Traffic Act.

[50] The Crown submitted that, generally speaking, a sentence of 30 to 45 days is appropriate for this sort of offence, and I agree. However, considering the particular circumstances of this case, this offender, and my ruling on the Charter issue, the Crown sought a 15-day jail sentence.

[51] Counsel for the accused has persuaded me that, taking into account the post-arrest Charter violation as a mitigating factor, a suspended sentence and probation with some community service work is the most appropriate disposition in this particular case. I agree.

[52] The accused is sentenced to 6 months suspended sentence and probation with a term that he must perform 20 hours of community service work.

Released: November 13, 2014

Signed: "Justice W.B. Horkins"