Court File and Parties
Court File No.: Old City Hall
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Melanie Doyon
Before: Justice H. Borenstein
Heard on: February 9, 2015
Reasons for Judgment released on: March 5, 2015
Counsel:
- Ms. Santora for the Crown
- Mr. Adler for the accused Melanie Doyon
Judgment
BORENSTEIN J.:
[1] Melanie Doyon is charged with driving while her ability to do so was impaired by alcohol and while she had a blood alcohol level over the legal limit.
[2] The Crown called the arresting officer and the qualified breath technician. I have viewed the videos of the exchanges between Ms. Doyon and the officers. No defence was called.
[3] Ms. Doyon submits that the Crown has not proved that her ability to operate a car was impaired to any degree. She also argues that the arresting officer did not know what a fail on an ASD meant and therefore the arrest and breath demand were contrary to the Charter. Finally, she submits that the police conduct in holding her for 14 hours after she completed her breath tests was unlawful and arbitrary and the charges should be stayed as a result.
[4] In brief, Ms. Doyon was stopped at a RIDE program at 12:25 a.m. The officer formed a reasonable suspicion that she was driving with alcohol in her system and demanded that she provide a sample of her breath into an approved screening device. Following seven attempts, Ms. Doyon provided a suitable sample and failed the test which indicated to the trained officer that Ms. Doyon had a blood alcohol level over the legal limit. Ms. Doyon suffers asthma and her seven attempts were likely due to her asthma. In any event, based on the fail, the arresting officer had reasonable and probable grounds to believe that Ms. Doyon operated her car while "over 80" and arrested her and issued a breath demand. Interestingly, though not altogether significant in this case, the arresting officer also believed, when she added the fail to the other indicia observed, that Ms. Doyon's ability to operate a motor vehicle was impaired by alcohol and arrested her for that offence as well.
[5] Ms. Doyon was taken to Traffic Services. She spoke with duty counsel and, by 2:22 a.m., had provided both breath samples into the Approved Instrument yielding readings over the legal limit. By 3:10 a.m., she was brought before the booking officer and had been served with all the required paperwork in relation to the offence.
[6] Ms. Doyon ordinarily resides in Montreal and was in Toronto on business. She explained this to the officers as well as the fact that she had a business meeting at 8:00 a.m. She had no criminal record nor any outstanding charges. She had provided her name and address in Quebec. The officers mistakenly believed she had to be held for a show cause hearing because she was from out of province. As a result, rather than being released at around 3 am, she was held in the cells at Traffic Services, then transported in custody to 11 Division, booked and lodged in the cells at 11 division, videotaped in those cells including while she used the toilet in her cell, then transported at 10:00 a.m. to College Park court and placed in the court cells there. She was eventually brought before a Justice of the Peace at College Park where the Crown advised the Court that she had been held because she had been uncooperative with the officers. She was released on consent from the College Park courthouse at 5:00 p.m., some 14 ½ hours after her breath test was completed.
[7] Before turning to the Over 80 count and the Charter issues, I will begin with the impaired count.
Impaired Charge
[8] If the Crown proves beyond a reasonable doubt that the accused's ability to operate a motor vehicle is impaired by alcohol, even slightly impaired, she will be found guilty. Slight evidence of impairment however is different than evidence of slight impairment. In this case, the evidence of impairment is weak and slight at best. The officer did not have grounds to believe Ms. Doyon was impaired until she factored in the fail on the ASD. I have seen the video of Ms. Doyon. I see no unsteadiness and heard no slurring of speech. The fact that Ms. Doyon required seven attempts to provide a suitable breath sample is easily explained by her asthma. I found the evidence of impairment to be weak and slight and I am not satisfied beyond a doubt about that count. She will be found not guilty of the impaired charge.
Over 80
[9] The over 80 count is proved subject to the two Charter issues; section 8 and 9. These reasons will focus on those issues.
Section 8
[10] Beginning with the section 8 argument: the defence submits that the arresting officer did not know what a fail on an ASD meant and therefore there was a violation of section 8 of the Charter.
[11] While there was minor confusion in the officer's evidence concerning the exact range of a warn on an ASD, there was no confusion or misunderstanding in her evidence that a fail meant Ms. Doyon had a BAC over the legal limit.
[12] There was no violation of section 8.
Section 9
[13] Turning to the section 9 issue, to recap the basic chronology:
[14] At 12:25 am, Ms. Doyon was pulled over in the RIDE program.
[15] At 12:37 a.m., she failed the ASD, and was arrested and a breath demand was made. By 1:00 a.m., she was paraded before the Staff Sergeant at Traffic Services. By 2:22 a.m., she had spoken to counsel and then completed both breath tests. By 3:11 a.m., she was returned to the staff sergeant and served with relevant breath certificates.
[16] Accordingly, by 3:11 a.m., everything required of Ms. Doyon had been completed. In the ordinary course, she should have been released.
[17] A transcript was obtained of the interaction between Ms. Doyon and the Staff Sergeant at that time:
"due to the fact that you're not a resident of the Province of Ontario, you're required to post a bond to be released. You're going to be transferred to 11 Division to see if you can make that bond. And if not, you'll be held to court in the morning."
[18] Ms. Doyon was then taken to 11 Division.
[19] At 3:35 a.m., she was paraded before the staff sergeant of that division where the following exchange occurred:
Officer: "She is a Quebec resident. So she has been brought back to 11 Division for a bail bond."
Sgt: Held for a show cause hearing and ensure her appearance in Court?
Officer: Absolutely yes.
The officer then told Ms. Doyon that she would be held for a bail hearing.
The Sergeant asked Ms. Doyon if she had any questions prompting the following exchange:
Acc: What's the next step? What's going on?
Sgt: You're going to sit in the cells until the wagon comes this morning in a couple of hours and takes you out to court.
Acc: What do you mean? I thought I was allowed to pay for bail?
Sgt: Well, you're out of Province and the officer already down there at Traffic Services indicated that….
Acc: So do I get phone calls? Can I call my work at least to warn them that I won't be at my presentation tomorrow?
Sgt: well you're going to be out this morning more than likely but…
Acc: Yeah but my presentation is at 8:00.
Sgt: Well, you're not going [to] be making that. You'll be able to use the phone.
Acc: Well, that's what I mean.
Sgt: Did she use the phone over there at TSV?
Officer: Just to
Acc: Just to the lawyer. I wasn't allowed to call …
Sgt: You'll be able to make the phone calls here.
Acc: I should be allowed to.
Sgt: Yeah, I'm telling you, you can.
Acc: Please.
And later:
Acc: I can't – I am not allowed to say what the lawyer told me? If I do your test and I don't pass, then they're going to ---release me upon bond. And then I need to contact a lawyer as soon as possible.
Sgt: Well, obviously you didn't have money to post it right away.
I pause here to note Ms. Doyon only had two or four dollars cash on her.
Acc: I have money. I can pay you. No one asked me if I could or not.
The sgt replied: oh
Sgt: That's – anyways, you're going to be held for that.
Acc: No one asked me ever.
Nothing more was said about the subject.
[20] The staff Sergeants at both divisions were of the erroneous view that, simply because Ms. Doyon was ordinarily resident of Quebec, and even though she had no criminal record, was not on bail, was working, had provided her address and phone number, that she had to post a bond and, if not, she would be held for a show cause. That is incorrect.
[21] Section 498 of the Code provides:
498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496 (a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,
- (a) release the person with the intention of compelling their appearance by way of summons;
- (b) release the person on their giving a promise to appear;
- (c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
- (d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.
Exception
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,
- (a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
- (i) establish the identity of the person,
- (ii) secure or preserve evidence of or relating to the offence,
- (iii) prevent the continuation or repetition of the offence or the commission of another offence, or
- (iv) ensure the safety and security of any victim of or witness to the offence; or
- (b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
[22] Accordingly, there is no need to be held for a show cause merely because someone is from Quebec. An officer must consider the factors in s. 498 which are similar to the factors in s. 515. None of those matters appear to have been given any consideration. Ms. Doyon was not even asked if she would appear in Court and, had she been asked, certainly no reason to suspect she would not attend Court. She was not asked to enter into a recognizance without deposit. It appears that the policy of both divisions is to require bonds to be posted or, worse, to require someone to be held for show cause if they are from out of Province without any consideration of the individual.
[23] That is contrary to section 498. The detention was unlawful and arbitrary contrary to section 9 of the Charter.
[24] Proceeding in that fashion resulted in Ms. Doyon not being released soon after her last test around 3:00 a.m. but held in three different locations until she was released from custody 14 hours later.
[25] When she protested or complained, her complaints were all but ignored.
[26] Moreover, at that show cause hearing, crown counsel advised the Court: "the only reason that the officers held her for court was because she was extremely uncooperative with them such that they were unable to release her on a form at the station".
[27] The presiding Justice asked whether she refused to sign the forms. The Crown replied "I think she wasn't even providing information it sounds like. So I'm assuming that she's probably feeling a bit more cooperative right now Your Worship and is agreeable to her own undertaking in respect to this matter".
[28] Events at the station reveal no such lack of cooperation.
[29] The authorities had her identification. They had her driver's licence. They had her address in Quebec. They knew she was staying at the Best Western Hotel near the airport. That she in Toronto for work and had a presentation at 8 am. She wanted to know what time she would be released and reiterated that she had an 8 am meeting. The tests were complete. The paperwork in relation to the tests had been served. They were aware she had no criminal record or outstanding charges.
[30] There was no justifiable basis on the record before me to hold her in custody after she was served with the paperwork relevant to her case. The detention became unlawful and therefore arbitrary. This was a serious violation of section 9 of the Charter.
[31] Moreover, both Crown and defence submit that there was a violation of Ms. Doyon's right to counsel. Relying on the authority of R v. Jutras, Crown and defence submit that, when the unexpected decision to hold Ms. Doyon for a show cause hearing was made, Ms. Doyon should have been re-advised of her right to counsel. They both agree there was a 10(b) violation.
[32] In the context of the decision to hold Ms. Doyon for a show cause based on a policy that is contrary to law, consultation with counsel would have been extremely useful.
[33] Accordingly, I find Ms. Doyon's right to not be arbitrarily detained and her right to counsel to have been violated.
[34] What is the remedy for these violations? The breath readings were obtained prior to any breach. The defence seeks a stay of proceedings.
Stay
[35] A stay is a remedy of last resort and is only available in the clearest of cases where no lesser remedy would suffice. The rationale for imposing a stay as a remedy is prospective. It is not to redress harm already done. The onus is on the applicant.
[36] In R v. Zarinchang, 2010 ONCA 286, the Court of Appeal reviewed principles relating to a stay of proceedings. The Court held that there were two categories of cases that may attract a stay. The first category are cases where the fairness of the trial has been implicated by the state misconduct. The second category "involves a residual category unrelated to the fairness of the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process".
[37] The Court held that, in considering whether to grant a stay of proceedings under either category, the following criteria must be satisfied:
(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and
(ii) no other remedy is reasonably capable of removing that prejudice.
[38] The Court also held that, where uncertainty remains as to whether the abuse is sufficiently serious to warrant a stay, the Court must balance the interests of granting a stay against society's interest in having a trial heard on the merits.
[39] Bearing all of the above in mind, it is my view that stay ought to be granted as a result of the violations of Ms. Doyon's rights under sections 9 and 10(b) of the Charter. I begin by noting that the conduct and violations at issue here fall into the residual category.
[40] The following factors in particular cause me to come to that conclusion.
[41] First, this was a serious violation of section 9 of the Charter both in its impact on Ms. Doyon and the reasons why it occurred.
[42] Both staff sergeants failed to give any consideration to the factors in s. 498 other than the fact that Ms. Doyon was from Quebec.
[43] When she tried to protest or complain, her complaints were all but ignored. She could not get through to the officers at all.
[44] She was detained for 14 hours beyond what she should have been.
[45] Ms. Doyon was shuttled between the cells of three locations and videotaped in her cells while using the toilet. That treatment impacted her dignity.
[46] When finally brought to Court, the comments made by Crown counsel to the Justice of the Peace, undoubtedly as a result of information provided by the police, wrongly suggested that Ms. Doyon herself was somehow to blame for having been kept in custody.
[47] There was a violation of her right to counsel at a time when consultation with counsel was needed and could have been extremely helpful.
[48] Finally, the evidence leads to the strong inference that it is the policy of both police divisions, at a minimum, to require a bond but more likely, to hold for a show cause persons who are from out of Province. There is no reason to think this was isolated to Ms. Doyon. Everything moved inevitably to that outcome. Her attempt to question or reason with the officers was ignored or dismissed out of hand.
[49] Given the manner in which both staff sergeants proceeded, I infer that this practice is entrenched in the TPS release process and likely has for some time and will continue unless the court denounces that practice in the strongest terms available; namely, a stay of proceedings.
[50] Finally, when balancing a stay with society's interests in a trial on the merits, Courts have routinely recognized the effects of drinking and driving on society. That must be balanced against the fact that, to some extent, Ms. Doyon has already received significant punishment in this case. She spent over 14 hours in custody. She has had to come to court repeatedly to vindicate her rights. That has undoubtedly been costly. I note that Ms. Doyon's breath readings were truncated to 130 mg of alcohol in 100 millilitres of blood. She was found not guilty of impaired operation.
[51] Balancing all those considerations, I order the Over 80 count stayed.
Released: March 5, 2015
Signed: Justice H. Borenstein