Court File and Parties

Ontario Court of Justice

Date: 2015-02-25

Court File No.: Central East Region 14-00182

Between:

Her Majesty the Queen

— And —

Shanon Wendell

Before: Justice M. Felix

Heard on: January 8, 2015

Ruling – Charter Application: February 25, 2015

Counsel:

• F. Stephens, Counsel for the Crown
• K. Mitchell-Gill, Counsel for the Defendant Shanon Wendell

Decision

Felix J.:

[1] Ms. Wendell is charged with impaired operation and "over 80" as a result of an investigation that occurred on February 2, 2014. She has brought an application pursuant to the Canadian Charter of Rights and Freedoms [Charter] alleging a breach of sections 7, 8, 9, and 10(b). The parties requested that the matter proceed as a "blended" application and trial. It was agreed that the evidence called by the Crown on the application would apply to the trial. The applicant did not testify on the application. The Crown accepted the onus with respect to the section 8 application. The applicant accepted the onus on the section 7, 9, and 10(b) application.[1]

[2] At the conclusion of evidence on January 8, 2015 the Crown Attorney conceded a breach of section 8. The applicant abandoned the 10(b) application. The parties requested a ruling on the section 8 and the court heard submissions.[2]

Position of the Applicant

[3] Counsel for the applicant submits that section 8 has been breached and that the analysis pursuant to section 24(2) of the Charter favours exclusion.

[4] The applicant asserts that the reasonable and probable grounds required by section 254(3) of the Criminal Code of Canada is both a statutory and constitutional precondition to a lawful search and seizure (R v Haas, [2005] O.J. No 3160 (QL)(OntCA)). The investigating officer possessed lacked reasonable and probable grounds to arrest for care or control. At best he had a reasonable suspicion, and should have made an ASD demand. He went straight to an arrest (within approximately two minutes of contact with the applicant) without a real investigation into the circumstances including how an apparent accident happened. In addition, he was inconsistent about the accident. While relying on an apparent accident as part of his grounds, he later testified that he concluded that the vehicle had come to a sudden halt and did not lose control. It was submitted that the accident was not available as a sign of impairment.

[5] With respect to section 24(2), the applicant submitted that the breath sample results, inculpatory statements to an intoxilyzer technician, and observations of PC Smale post-arrest adduced in support of impairment should be excluded. While the investigating officer was polite, respectful, and professional; there was a lack of "good faith" adherence to Charter standards (R v Grant, 2009 SCC 32, [2009] SCJ No 32(QL) at para 76).

[6] The applicant was arrested, her licence suspended, her car towed, and she was held for several hours at the police station. The impact on the applicant was serious.

Position of the Respondent

[7] During the hearing of evidence on the Charter application the Crown Attorney notified the court that the Crown wished to concede the section 8 breach. The court initially questioned this approach. In the end, having reviewed the evidence several times, I am prepared to accept this concession.

[8] The Crown Attorney submitted that the grounds were sparse. While a strong odour of an alcoholic beverage coupled with denial and a collision could support reasonable and probable grounds, the approach taken by the investigating officer was not defendable. The Crown Attorney submitted that that reasonable and probable grounds for arrest were lacking because of the following reasons:

[9]

1. The officer did not explain the reasonable basis for his belief that the collision was connected to impairment of the applicant's ability to drive;

2. The officer was inconsistent with respect to the role that the collision played in relation to his reasonable and probable grounds. He relied upon an apparent collision at first. He later testified that it did not appear that the vehicle had lost control but that it appeared to have come to an abrupt stop;

3. The officer testified that based on his experience the applicant looked really drunk. He was unable to articulate the basis for his subjective belief (e.g. observed indicia consistent with his subjective conclusion); and,

4. The officer did not appreciate the distinction between an odour of alcohol being consistent with consumption rather than an impaired ability to operate a vehicle.

Respondent: 24(2) Argument

[10] The Crown Attorney presented a thoughtful and cogent argument with respect to section 24(2). The officer was straightforward, well-meaning, and honestly held subjective grounds for arrest. He did not mistreat the applicant. This was not a random stop of a motor vehicle. The officer had some knowledge of the law and Charter rights. Given the circumstances the officer encountered there was not much more that the officer could have done.

[11] The respondent argued that there was little nexus between the Charter–infringing conduct and the breath samples, the observations of the applicant in the station, or the inculpatory statements made. The applicant received access to legal counsel and chose to speak to the police. There was nothing about the arrest that compelled the applicant to speak to the police.

[12] The highly reliable breath samples, the observations, and the statements should be admitted.

The Evidence

Accident or Collision

[13] O.P.P Constable Gray was travelling westbound lanes near Westney Road on the 401 highway. As he approached an on-ramp for vehicles accessing the 401 highway to proceed westbound, he observed a motor vehicle on the on-ramp. The vehicle was stationary. It was positioned right in the bend in the curve of the on-ramp. The vehicle did not look right. It was oddly positioned. So he decided to investigate. While not completely blocking the ramp, the vehicle was partially on the shoulder and partially on the lane for travel. The vehicle was not positioned in the deep ditch next to the curve in the on-ramp. The driver's side wheel well was severely damaged. The steel bodywork above the wheel was damaged. Other traffic was manoeuvring around the stopped vehicle and negotiating the curve of the on-ramp without any problem.

[14] When the investigating officer approached the vehicle it was running (he could hear the engine), the lights were on, and there was a female occupant in the driver's seat – the applicant Ms. Wendell.

[15] Constable Gray did not observe the motor vehicle being operated. He could not explain how the accident occurred. He reasonably concluded that the vehicle may have come in contact with the ditch, snow, or railing in some fashion.

[16] Constable Gray was inconsistent concerning what role the collision or accident played in his reasonable and probable grounds. In direct-examination he relied upon an apparent accident but conducted no investigation (and asked no questions of Ms. Wendell) concerning causation. He could not remember if he saw the damage before or after the arrest of the applicant. For the purpose of completing his accident report he speculated that the driver might have been going too fast given the condition of the roads.[3] He explained that he had no idea what was happening inside the applicant's vehicle prior to it coming to a rest. He later testified that he concluded that the vehicle had simply come to a sudden halt and there was no apparent loss of control. He further testified that he would have considered alternative causes for the accident but once he detected the strong odour of an alcoholic beverage it led him to think differently.

Consumption of Alcohol

[17] Constable Grey spoke to the driver and sole occupant and asked her if she was injured. The applicant confirmed that she was not injured. He determined that the driver was drunk. He detected a very strong odour of alcohol and subsequently determined it was emanating from her breath. He asked the applicant if she had consumed alcohol. The applicant denied having consumed any alcohol. Based on his experience and her demeanor he concluded that she was drunk.

[18] Ms. Wendell was not slurring her words. She was not confused or dazed. She provided appropriate responses to his question. Constable Grey determined that Ms. Wendell looked "drunk" based on his "experience" and his assessment of her demeanor.

[19] Constable Gray was unable to provide any further details in support of his conclusion that the applicant was drunk. He could not provide any indicia of impairment save the odour of alcohol emanating from her breath. To be frank, he was too polite to say it but it was clear to the court that he did not accept the applicant's statement that she had not been drinking.

Analysis – s. 8 Charter Breach

[20] At the conclusion of cross-examination the Crown Attorney conceded a breach of section 8 of the Charter. I accept that concession.

[21] Having regard to the applicable law, the subjective grounds were weak and the subsequent arrest is not supported by the objectively discernible facts and as such is not sustainable (R v Shepherd, 2009 SCJ No 35(QL); R v Bush, 2010 ONCA 554, [2010] OJ No 3453 (QL)(ONCA); R v Censoni, 2001 OJ No 5189 (QL)(Ont Sup Ct)).

[22] Constable Gray possessed a reasonable suspicion. He had grounds to make an ASD demand or conduct physical sobriety tests. Had he employed one of these tools the accident causation would have been of limited importance.

[23] Constable Gray was inconsistent concerning his reliance upon the fact of a collision or accident as part of his reasonable and probable grounds. Whether or not he relied upon it, he conducted no real investigation of the cause. While this might be understandable given the time of night and the location of the investigation, the investigation left him with an odour of an alcoholic beverage emanating from the applicant's breath and a conclusion that she was drunk.

[24] In addition, he did not explicitly testify that he arrested the applicant for being in care or control of a motor vehicle while impaired by the consumption of alcohol. He articulated during direct examination (when it was clear he was relying upon a collision as part of his grounds) that he arrested for "impaired". During cross-examination he ceased relying on the accident, culminating with his testimony that he concluded that the vehicle had come to a sudden halt and did not lose control (i.e. there was no accident or collision).

[25] While Constable Grey honestly believed he had reasonable grounds, these grounds are not supportable to the objective standard.

Analysis – Section 24(2) of the Charter

Seriousness of the Charter Infringing State Conduct

[26] Under part one of the test in Grant, supra, the court must assess the seriousness of the conduct in this case and consider the overall circumstances.

[27] The investigating officer attended to a motorist on a major highway. His intent as evidenced by his first question was simply to check on the welfare of a person on a major highway. His attention was drawn because of the odd positioning of the vehicle on the on-ramp. The vehicle was positioned partially in a lane of travel and partly on the shoulder. Other vehicles were driving around the applicant's vehicle to get by on the ramp. In these circumstances the officer had a public duty to act. He would not have been in proper performance of his duty had he simply left the applicant in this position. He would not have been performing his public duty had he left the vehicle partially blocking the lane of travel for those entering the highway. The investigating officer could not leave the applicant in this position after having detected the odour of alcohol emanating from her breath and considering that her denial of consumption did not accord with his observations.

[28] I find that the officer made a judgment call at the side of the road. He arrested the applicant when the grounds for arrest were sparse. He had a reasonable suspicion. He should have confirmed this suspicion with either an ASD or physical sobriety tests. His suspicion would have been quickly confirmed or denied. Parliament has approved such tools to assist in these situations and some Constitutional rights are suspended in the name of public safety to provide the police with the ability to detect these crimes. A balancing of the competing interests in this area of law requires a standard from the police. The public are entitled to expeditious, professional, and minimally intrusive investigations on the part of the police using the statutory tools and relying on good police training. This is acutely related to the preservation of public confidence in the rule of law.

[29] The officer in this case was polite, respectful, courteous, and professional in dealing with the applicant. He nevertheless may not rely on "good faith" given the deficiencies outlined above.

[30] This conduct should not be characterized as a minimal or technical breach. On the other hand it should not be characterized as a deliberate and wilful breach of the Charter. The extenuating circumstances place the officer's conduct in the middle of the continuum.

[31] I believe that a reasonable person, informed of all of these circumstances would conclude that the officer made a judgment call and was marginally deficient in his grounds. A reasonable person would be sympathetic in that the officer was not entitled to walk away from these circumstances given his public duty. While it is a close call, consideration of this ground favours inclusion.

Impact on the Charter - Protected Interests of the Accused

[32] The Charter - protected interests engaged by section 8 relate to the protection of a reasonable expectation of privacy. Section 9 relates to detention that is arbitrary. In this case we have an arrest that occurred without reasonable and probable grounds. This was a serious infringement of Charter–protected rights.

[33] Ms. Wendell was arrested, handcuffed, and taken to the police station. She was released several hours later. Her car was towed. She received an administrative licence suspension.

[34] Consideration of this ground favours exclusion.

Society's Interest in an Adjudication on the Merits

[35] The truth-seeking function of criminal trials favours the admission of evidence. I have considered society's interest in ensuring that this case is adjudicated based on the evidence.

[36] I hold the view that a reasonable member of society would understand the circumstances that faced the officer at the roadside and support the actions that he took. To re-iterate, his initial focus was simply the safety and well being of the applicant given the odd positioning of her vehicle on the on-ramp. Her vehicle was partially in a live lane of travel and was damaged. This was not a situation that he could ignore. Once fixed with a strong odour of alcohol, and the applicant's denial that she had been drinking, this conflicted with his subjectively held (but not articulated at trial) view that she was bluntly – drunk. Failing to admit the evidence in these circumstances would negatively impact the repute of the administration of justice (Grant, para 79).

[37] This ground favours inclusion.

Conclusion – Exclusion of Evidence

[38] The final analysis requires a balancing of the factors to determine if the admission of the evidence would bring the administration of justice into disrepute (Grant, supra at para 85). There is no set rule dictating how this exercise should be done (Grant, supra at para 86). There is no automatic inclusion or exclusion analysis applicable. Each case requires a particularized analysis (see for example R v Manchulenko, 2013 ONCA 543, [2013] OJ No 3977 (QL) at para 69 (ONCA)).

[39] I will now address the three categories of evidence for which exclusion is sought at this stage.

Breath Samples

[40] The Supreme Court of Canada in Grant mandated a flexible multi-factored approach to different kinds of bodily evidence (Grant, supra at para 103). A focus on privacy, bodily integrity, and human dignity is required rather than knee-jerk exclusion by analogy to conscripted or compelled statements (Grant, supra at para 104).

[41] The breath samples are highly reliable and necessary to the case for the Crown. The acquisition of breath samples was minimally intrusive.

[42] I have also sought to rely on common sense in this analysis. When I consider the reasonable person's consideration of the circumstances in this case I believe that that person would recognize that the officer was dealing with an unusual circumstance at the side of the road as outlined above. Given the positioning of the vehicle on the ramp and other traffic there were public safety concerns at play. The officer did not engage in a thorough examination of the cause of the collision or accident. He honestly and subjectively believed the applicant to be drunk. She was behind the wheel of her running vehicle. His initial interest in the vehicle was simply the well-being of the occupant. Once possessed of the strong odour of alcohol, the apparent accident, and her denial of consumption should he have simply let her go on her way?

[43] I have analysed the circumstances at the roadside earlier in this ruling. Given the circumstances detailed there was no construction of the events that would have involved leaving the applicant at the side of the road or permitting her to go on her way.

[44] I believe that a reasonable member of our public would accept the actions of the investigating officer in this case. In these particular circumstances I believe that excluding the breath sample readings would bring the administration of justice into disrepute.

Observations of Indicia of Impairment

[45] But for the arrest and detention, the applicant would not have been in a police facility where observations could be made of her by Constable Smale. The applicant did not consent to the observations being made and indeed probably was not aware that she was being observed in this fashion. In my respectful view, a reasonable person in society might ask why it is fair to admit observations of a person who was arrested without reasonable and probable grounds in the circumstances of this case.

[46] I acknowledge that drinking and driving prosecutions are serious but the exclusion of these observations would not effectively end the prosecution.

[47] I have not yet heard submissions concerning section 9 and whether or not the detention in this case is arbitrary. The implication of the Crown concession (and my findings) on the section 8 breach is that the applicant was arrested in circumstances where reasonable and probable grounds were not available even on a balance of probabilities. I will hear further argument concerning section 9 but I do not believe that adding a section 9 breach changes my analysis under 24(2) of the Charter.

[48] There is support for the Crown position that the observations made by PC Smale should be admitted (R v Lutchmedial, 2001 OJ No 3999 (QL)(OntCA)). Indeed, there is authority for the proposition that observations of a lawfully detained person are admissible as those observations do not involve compelling the detained person to participate in the creation of the evidence (Lutchmedial, supra at para 5; R v DeWitte, 2012 OJ No 976(QL) (Ont Sup Ct)). In this particular case the applicant was arrested absent reasonable and probable grounds. There were no other offences being investigated (for example the accused was arrestable for dangerous driving in Luthmedial). While I have not yet heard argument on this issue I think it unlikely the respondent will submit that the applicant was lawfully detained. While I appreciate there is no automatic rule of inclusion or exclusion of evidence subsequent to a breach, I believe that this evidence should be excluded.

Inculpatory Statements

[49] The applicant did not testify on this application and the Charter 10(b) was abandoned. The applicant received access to legal advice and exercised that right. There is no real nexus between the Charter–infringing conduct at the roadside and the provision of the statements in this case. The statements were made after consultation with a criminal lawyer. The statements were made to a police officer other than Constable Grey. I think it unlikely that the applicant appreciated that Constable Grey lacked reasonable and probable grounds at the time she made her voluntary statements such that it had any impact on her behaviour.

[50] Each case is different. On the available facts and particular circumstances in this case, the intervening consultation with counsel and the overall treatment of the applicant diminish any connection between the Charter–infringing conduct at the roadside and the impugned statements (See Manchulenko, supra, at paras 68, 77, 97).

[51] The only available inference based on the evidence on this application is that there is little or no nexus between the Charter -infringing conduct and the voluntary statements made after consultation with criminal legal counsel. The statements will be admitted into evidence.

Released: February 25, 2015

Signed: "Justice Felix"

Footnotes

[1] The section 7 breach allegation was not addressed in the argument and will be deferred as it appears to be referable to events at the police detachment.

[2] The Court did not hear focused submissions concerning the section 9 complainant. As a result the parties will be given an opportunity to make further submissions.

[3] His accident report contemplates this speculation by the use of special codes.