Court File and Parties

Court File No.: Brampton –13-15581 Date: 2015-06-03 Ontario Court of Justice (Central West Region)

Between: Her Majesty the Queen

• and - Stephen Provo

Counsel:

• J. Mathurin, Counsel for the Crown
• A. Andreopoulos, Counsel for Mr. Provo

Heard: November 26, 2014; April 8, 2015

Reasons for Judgment

Schreck J.:

I. FACTS

A. The Arrest

[1] Stephen Provo, a resident of Michigan, travels to the Toronto area on business three or four times a year as the company he works for has an office here. On one such visit on December 5, 2013, he was arrested for operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit. He was taken to the police station where he provided samples of his breath into an approved instrument which confirmed that there was excess alcohol in his blood. Because he was not a resident of Canada, Mr. Provo was held overnight and taken to court the next day for a bail hearing. He ultimately spent over four days in custody before being released on his own recognizance.

[2] At his trial, Mr. Provo alleged that a number of his Charter rights were violated: his s. 8 rights because unbeknownst to him, he was under video surveillance while urinating in a holding cell, his s. 9 rights because he was wrongly held for a bail hearing, and his s. 10(b) rights because he was not given another opportunity to consult counsel after the decision to hold him was made. He seeks as a remedy a stay of proceedings or, in the alternative, the exclusion of the breath test results.

II. EVIDENCE

A. The Arrest

[3] At 12:46 a.m. on December 5, 2013, Cst. Allan Collins conducted a random stop of a motor vehicle on Torbram Road in Mississauga in order to ascertain the sobriety of the driver, the Defendant, Stephen Provo. There is no issue that after approaching the vehicle, Cst. Collins formed a reasonable suspicion that Mr. Provo had alcohol in his body and that he made a valid demand that Mr. Provo provide a sample into an approved screening device. Similarly, there is no issue that after that sample registered a fail, Mr. Provo was properly arrested for the offence of driving with an excess concentration of alcohol in his blood and that a valid demand was made that he provide samples of his breath into an approved instrument.

[4] Cst. Collins transported Mr. Provo to the Airport Detachment of the Peel Regional Police, arriving there at 1:23 a.m. Mr. Provo had been advised of his right to counsel at the roadside and once at the station was given an opportunity to speak to duty counsel. He was then handed over to Cst. Stevens, a qualified breath technician. He provided two breath samples at 2:12 a.m. and 2:35 a.m., resulting in truncated readings of 160 and 170 mg of alcohol per 100 ml of blood.

B. Security Cameras

[5] There are security cameras at various locations throughout the division, including the holding cells. They are attached to the walls and are apparently visible. One such camera was mounted on the wall directly opposite from the cell where Mr. Provo was lodged. The inside of the cell, including the toilet, can be seen from the camera. On at least one occasion, the camera filmed Mr. Provo urinating. He can be seen standing in front of the toilet with his back to the camera and is clearly urinating. At no point are his genitalia visible. The video feed from the camera could be seen on a video monitor at the cells officer's desk and would also have been accessible to the staff sergeant.

[6] At some point after Mr. Provo's arrest, as a result of a number of court decisions which I will review later in these reasons, technical changes were made to the video system. While the inside of the cell is still under video surveillance, the area around the toilet is blurred or "frosted" on the video screen such that prisoners cannot be seen urinating. I did not hear evidence as to when this change took place, only that it was after Mr. Provo was in custody.

C. The Decision to Hold Mr. Provo For a Bail Hearing

[7] When Mr. Provo was brought to the police station, Cst. Collins advised the officer in charge of the station, Sgt. Laporte, that Mr. Provo was an American citizen. He did not recall providing Sgt. Laporte with any other information.

[8] Mr. Provo told Cst. Stevens which hotel he was staying at. While he was undergoing the breath tests, Mr. Provo asked what would be happening to him. Cst. Stevens replied "If you don't get two readings over, you get back to your hotel tonight. If you do get two readings over, you get to stay at our hotel". Later, Cst. Stevens said "Unfortunately, because you aren't a resident here you are going to have to go before a judge in the morning."

[9] Mr. Provo's breath tests revealed that he was over the legal limit and he was, as Cst. Stevens predicted, held for a bail hearing. He was not provided with a further opportunity to consult counsel, nor did he request such an opportunity. Mr. Provo was never advised of the right he had as a foreign national to contact his country's consulate.

[10] Cst. Stevens testified that whether or not Mr. Provo was to be released from the station was up to the officer in charge. However, he understood it to be "standard practice" to hold non-residents for bail hearings.

[11] Sgt. Laporte testified that when Mr. Provo first entered the station, he was aware that Mr. Provo was from Michigan and in Canada on business. Sgt. Laporte spoke to Mr. Provo to ascertain whether he had any health issues, but had no other conversation with him except for some discussion about Detroit sports teams. He did not ask Mr. Provo how often he came to Canada or how long he planned to stay. He did not ask him if he would attend court as required.

[12] Sgt. Laporte testified that he decided to hold Mr. Provo for a bail hearing because he had no ties to the area and was from another country. He did not, however, make any inquiries into what ties Mr. Provo may have to the area. Sgt. Laporte stated that he had considered releasing Mr. Provo on his own recognizance but decided that it would not be "proper" to do so. When asked by Crown counsel whether he had turned his mind to any specific provision of the Criminal Code in coming to his decision, Sgt. Laporte responded as follows:

I'm not sure what you're asking, provision. It's just that he said he was here on business, he was from Michigan, American citizen, and I believed he should have. . . should be going for a bail hearing again for the Crown to decide what kind of conditions he would be released on to ensure he returns.

[13] Later in his testimony, Sgt. Laporte suggested that another factor he considered was that he did not know if Mr. Provo had a criminal record. In cross-examination, he acknowledged that he had access to an American database kept by the Federal Bureau of Investigation that was similar to the Canadian Police Information Centre ("CPIC"), but he did not use it to make any inquiries about Mr. Provo, nor was he aware of any officer doing so.

[14] In response to questions from the Court, Sgt. Laporte initially confirmed Cst. Stevens's evidence that it was "standard practice" to hold non-nationals for bail hearings, although exceptions might be made for people who owned cottages in the area or who lived here part-time. In response to further questions from Crown counsel arising out of the Court's questions, Sgt. Laporte resiled from his earlier testimony and stated that there was no such "standard practice".

[15] Sgt. Laporte was aware that there was a Peel Regional Police directive stating that when foreign nationals are arrested, they are to be afforded an opportunity to speak to their country's consulate. Sgt. Laporte did not know whether this had been done in Mr. Provo's case, nor did he make any inquiries in this regard.

D. Mr. Provo's Testimony on the Voir Dire

[16] Mr. Provo testified that he has been employed by a company called McQuarry Equipment Finance for the past 20 years. The company has a sales office in Toronto and Mr. Provo travels to the Toronto area on business three or four times a year. On December 4, 2013, he drove from Michigan to a hotel in Mississauga, where he was staying because he had a business meeting in Oakville the following morning. After a dinner with business associates, he attended a drinking establishment in Mississauga where he consumed alcohol. After leaving that establishment, he was arrested by Cst. Collins.

[17] Upon being brought to the police station, Mr. Provo spoke to duty counsel. He testified that at the time he did so, he was not aware that he may be held for a bail hearing and he therefore did not receive any legal advice on this subject. He first learned that he may be held when Cst. Stevens told him that if his breath tests results were over the legal limit, he would have to stay in "their hotel". He was not provided with another opportunity to consult counsel after that, nor was he told about his right to contact the United States Consulate.

[18] Mr. Provo testified that he was held at the police station overnight. On Thursday morning, he was transported to the courthouse and placed in a cell with several other individuals. Duty counsel came to see him and he asked her to contact his wife. She later told him that a message had been left for her.

[19] Transcripts of Mr. Provo's court appearances were filed on the voir dire. When he was first brought to bail court, Crown counsel said "that's a consent" and that she would be recommending a cash bail. Mr. Provo testified that he did not understand at the time that the Crown was consenting to his release. While he had funds available to him, nobody asked him about this.

[20] Mr. Provo testified that he initially contemplated pleading guilty to the charge, so his matter was traversed to the guilty plea court. Once there, his matter was adjourned at his request to bail court on the following Monday so that he could determine what the consequences would be if he pleaded guilty. Mr. Provo explained that he was still contemplating pleading guilty at that point. Later, upon realizing the seriousness of the matter, he decided not to. He had by then been advised that any driving prohibition imposed by the court would be enforced in Michigan, and that a conviction may prevent him from returning to Canada.

[21] On Thursday evening, Mr. Provo was taken to Maplehurst Detention Centre, where he was strip searched and then placed in a cell. By then, it was late in the day and he was not permitted access to a telephone. The next morning, he tried unsuccessfully to contact his wife. He saw a notice on the wall with the number for the United States Consulate, which he also tried to contact, again without success. That afternoon, Mr. Provo's wife, who had travelled from Michigan, came to visit him. He was brought to court the following Monday, at which time he was released on consent on a $1000 recognizance with deposit.

III. ANALYSIS

[22] It is not in dispute that Mr. Provo operated a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit. The only issues to be determined are whether any of Mr. Provo's Charter rights were violated and, if so, what, if any, remedy is appropriate.

A. Section 8 of the Charter

(i) The Breach

[23] Mr. Provo submits that by subjecting him to video monitoring while he used the toilet, the police violated his s. 8 Charter rights. The remedy he seeks is a stay of proceedings. This issue has arisen in Ontario several times in the past few years: see R. v. Mok (2012), 2012 ONCJ 291, rev'd 2014 ONSC 64; R. v. King (2012), 2012 ONCJ 343; R. v. Chasovskikh, [2013] O.J. No. 16 (C.J.); R. v. Deveau (2013), 2013 ONCJ 644, aff'd 2014 ONSC 3756; R. v. Smith, 2014 ONCJ 133; R. v. Griffin, [2014] O.J. No. 2029 (C.J.), aff'd 2015 ONSC 927; R. v. Arbelo, 2014 ONCJ 275; R. v. Orenchuk, 2014 ONCJ 650; R. v. Noel, [2015] O.J. No. 1757 (S.C.J.); R. v. Clucas, [2015] O.J. No. 2123 (C.J.); R. v. Clarke, 2015 ONCJ 228.

[24] The applicable principles are explained in many of the cases cited and there is no need for me to do so here. The preponderance of judicial opinion on the issue favours the conclusion that video surveillance of a prisoner urinating constitutes a violation of s. 8 of the Charter. While I have some doubt that there was such a violation in this case, given that what is seen in the video is the same as would be seen in any public male washroom where urinals are used, I am prepared to find that there was a breach of s. 8.

(ii) Remedy

[25] However, I am not persuaded that a stay of proceedings is an appropriate remedy, largely for the reasons given by Goldstein J. in R. v. Noel, supra at paras. 49-56. Of particular importance is the fact that the police have since taken steps to ensure that the privacy of prisoners in the holding cells is respected. As a result, the s. 8 application must fail.

B. Section 9 of the Charter

(i) The Relevant Statutory Framework

[26] Mr. Provo submits that the police held him for a bail hearing solely on the basis of a practice of holding all non-residents and that by doing so, they violated his s. 9 Charter rights.

[27] Part XVI of the Criminal Code creates a comprehensive scheme for compelling the attendance in court of those charged with criminal offences. It provides for varying degrees of restrictions on liberty that go from immediate release on an appearance notice, release from the police station with or without conditions, release from court following a bail hearing, to detention in custody. The overarching principle throughout Part XVI is that the least restrictive form of release that is reasonable should be imposed and any restrictions must be justified. This approach is mandated by the constitutionally-protected right of all individuals charged with offences to be presumed innocent until proven guilty.

[28] Where a person has been arrested and taken into custody, he or she may be released by the "officer in charge", who is defined in s. 493 of the Criminal Code as being "the officer for the time being in command of the police force responsible for the lock-up or other place to which an accused is taken after arrest or a peace officer designated by him for the purposes of this Part". The role of the officer in charge has been described as "murky" (see Hon. G. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010) at p. 2-25)). However, the grant of a release power to an officer in charge is "presumably intended to enhance accountability by requiring a senior officer to exercise his/her discretion independently of the officer(s) involved in the investigation": Trotter, supra at p. 2-5.

[29] In this case, the officer in charge could have released Mr. Provo in accordance with s. 498 of the Criminal Code, the relevant portions of which are as follows:

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody . . . 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,

(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.

[30] Thus, s. 498 required ("shall") that the officer in charge release Mr. Provo on a recognizance of up to $500 with or without deposit unless he believed on reasonable grounds that one of the situations described in ss. 498(1.1) applied, the only one of which is at issue here is subsection (b), that Mr. Provo would fail to attend court. In other words, there was a presumption in favour of release unless the officer had objectively reasonable grounds to conclude that Mr. Provo would fail to attend court: R. v. Jutras (2007) at paras. 83-92.

(ii) Factual Findings

[31] There is a factual dispute in this case as to whether or not the Peel Regional Police had a policy or "standard practice" of holding non-residents for bail hearings. Cst. Stevens testified that this was a standard practice. Although his evidence was not unequivocal on this point, Sgt. Laporte essentially denied that there was such a practice and claims to have made an individualized decision with respect to Mr. Provo, resulting in a conclusion that it would not be "proper" to release him.

[32] Regrettably, I am unable to accept Sgt. Laporte's evidence on this point. It was, in my view, clearly tailored to meet Mr. Provo's s. 9 application. I draw this conclusion for several reasons. First, while Sgt. Laporte claims that he made an individualized decision, he knew virtually nothing about Mr. Provo, nor did he make any attempt to inform himself of any relevant facts. While he testified that the existence or lack thereof of a criminal record was relevant, he made no attempt to access the American database available to him. His explanation that the database was sometimes incomplete hardly justified ignoring it.

[33] Second, Sgt. Laporte's testimony as to whether it was standard practice to hold non-residents was inconsistent. In response to questions from the Court, he acknowledged that it was a standard practice. In follow-up questions from the Crown, he resiled from this somewhat by suggesting that the practice was not applied in cases where an individual has ties to Canada, such as ownership of a cottage in the area. Yet he never made any attempt to discover whether Mr. Provo might be subject to one of these "exceptions".

[34] Third, Cst. Laporte does not appear to be familiar with the Criminal Code provisions setting out his responsibilities as an officer in charge. I am not here referring to his inability to recall the relevant section numbers, which is understandable. Rather, I am referring to the fact that he appears to believe that he was justified in holding Mr. Provo because it would be "best" for him to have a bail hearing. Nowhere in his testimony did he give any indication that he understood that there was a presumption in favour of release or that he had turned his mind to whether he had reasonable grounds to believe that Mr. Provo would fail to attend court.

[35] Finally, Cst. Stevens's testimony as well as what he said to Mr. Provo during the breath tests strongly suggest that there is in fact a standard practice to hold non-residents. Cst. Stevens testified that it was his understanding that there was such a standard practice. On the breath room video, he twice told Mr. Provo that because he was from outside the jurisdiction, he would be held for a bail hearing if the breath tests results led to him being charged. At no point did he suggest to Mr. Provo that this was a decision to be made by Sgt. Laporte, nor did Cst. Stevens leave the breath room to consult with Sgt. Laporte before telling Mr. Provo that he was to be held for a bail hearing.

[36] As a result, I find as a fact that in accordance with a standard practice of the Peel Regional Police, Mr. Provo was held for a bail hearing for no reason other than that he was a non-resident. Had Sgt. Laporte made inquiries, he would have discovered that Mr. Provo had no criminal record, was employed by a company with a Toronto office and that he travelled to Canada three or four times a year. In these circumstances, in my view there were no reasonable grounds to believe that Mr. Provo would fail to attend court. I note in this regard that Mr. Provo was eventually released on consent on his own recognizance with a cash deposit.

(iii) Was the Non-Compliance With s. 498 a Violation of s. 9 of the Charter?

[37] Having concluded that s. 498(1) of the Criminal Code was not complied with, I must now consider whether that non-compliance constituted a violation of Mr. Provo's s. 9 Charter rights. In my view, it did. Holding a person for a bail hearing where that person ought to have been released is as much, if not more of an interference with a person's liberty than is an arrest without grounds. In R. v. Rashid, the Court concluded (at para. 56) that a policy to hold for a bail hearing all persons charged with domestic assaults amounted to a "systemic abdication" of the legal responsibility to apply s. 498 of the Criminal Code. While the Ontario Court of Appeal denied leave to appeal the refusal to enter a stay in that case, in doing so the Court specifically did not disagree with the conclusion that there had been a serious breach of the Charter: R. v. Rashid, 2010 ONCA 591 at para. 7.

[38] The failure to release individuals from the police station on the grounds of non-residency alone has been held to violate s. 9 of the Charter in a number of cases: R. v. Jutras, supra; R. v. Manuel, [2012] O.J. No. 2943 (C.J.); R. v. Doyon, [2015] O.J. No. 1100 (C.J.); R. v. Sabatini, 2015 ONCJ 282. In two of these cases, R. v. Doyon and R. v. Sabatini, the decision to hold the individual appears to have been the result of an unofficial policy of the police service in question (in both cases, Toronto) to hold non-residents.

[39] For the foregoing reasons, I find that Mr. Provo's s. 9 Charter rights were violated.

C. Section 10(b) of the Charter

(i) The Applicant's Position

[40] Relying on R. v. Jutras, supra, Mr. Provo submits that by failing to afford him an opportunity to consult counsel a second time after it was decided that he would be held as a potential flight risk, the police violated his s. 10(b) Charter rights. In R. v. Jutras, supra, Wilson J. stated (at para. 68):

After he gave the breath sample, and after he spoke to duty counsel, the reason for his detention changed. The police decided to detain him as a flight risk, requiring him to attend a show cause hearing. Mr. Jutras was entitled to be advised clearly of the additional reason for his detention. I conclude, given the significant potential consequences to Mr. Jutras, he should have been cautioned of his right to counsel and given another opportunity to consult counsel when the police decided to detain him.

A s. 10(b) violation was found to have existed for similar reasons in R. v. Manuel, supra.

(ii) The Respondent's Position

[41] The Crown submits that R. v. Jutras has been overtaken by the Supreme Court of Canada's later decision in R. v. Sinclair, 2010 SCC 35. In that case, a majority of the Court held that s. 10(b) ordinarily entitles somebody who has been detained to a single consultation with counsel, however additional consultation may be required if there is a significant change in circumstances (at para. 65):

What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not.

The types of change in circumstances discussed by the Court were changes in the legal jeopardy faced by the accused in cases where the investigation began to include the potential for new or more serious charges. In this case, the Crown argues, Mr. Provo's jeopardy did not change after he consulted counsel as he was only ever under investigation for the drinking and driving offence. As a result, he was not entitled to further consultation with counsel.

(iii) The Purpose of s. 10(b)

[42] With respect, the Crown has read Sinclair too narrowly. According to the Crown, a change in jeopardy is the only type of change in circumstances that warrants further consultation with counsel. In my view, Sinclair does not stand for such a proposition. As is pointed out in Sinclair, the primary purpose of s. 10(b) is to ensure that detainees are aware of their right to silence and it is in that context that the Court proceeds with its analysis respecting additional consultation with counsel. However, advising detainees of their right to silence is not the only purpose of s. 10(b), as was made clear in R. v. Bartle at para. 16:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty. [Emphasis added, citations omitted].

Nothing in Sinclair suggests that access to legal advice as to how to regain one's liberty is no longer a purpose of s. 10(b). It must be recalled that Sinclair involved the interrogation of a person who had recently been arrested for murder. Regaining his liberty was simply not an issue for Sinclair at the time he sought a second consultation with counsel. Furthermore, although the Court's primary focus was on changes in jeopardy, the Court made it clear that the categories giving rise to the need for additional consultation with counsel are not closed: R. v. Sinclair, supra at para. 49.

[43] The vast majority of people charged with routine drinking and driving offences are released from the police station following the breath tests. As a result, there is no need for counsel advising a detainee in those circumstances to provide any advice about regaining liberty, and it is doubtful that duty counsel did so in this case. However, once the decision was made to hold him for a bail hearing, Mr. Provo was in need of legal advice with respect to this issue. For example, counsel could have advised him to provide the police with further information about his circumstances which may have led them to change their decision about holding him.

[44] For the foregoing reasons, I find that Mr. Provo's s. 10(b) Charter rights were violated.

D. Remedy -- Stay of Proceedings Pursuant to s. 24(1) of the Charter

(i) The Test for a Stay of Proceedings

[45] Mr. Provo seeks a stay of proceedings as a remedy for the breach of his Charter rights. Stays have been granted in other cases where non-residents were held for bail hearings: R. v. Jutras, supra; R. v. Manuel, supra; R. v. Doyon, supra; R. v. Sabatini, supra.

[46] The approach to determining whether a stay of proceedings is appropriate was set out in R. v. Babos, 2014 SCC 16 at paras. 30-32:

. . . [T]his Court has recognized that there are rare occasions -- the "clearest of cases" – when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[47] There is no suggestion that Mr. Provo cannot now have a fair trial. Any unfairness occasioned by his detention is long over. Thus, this case falls within the "residual category", that is, the focus must be on prejudice to the integrity of the justice system. In such cases, the central issue will be the extent to which it is necessary for the Court to disassociate itself from the impugned conduct so as to make it clear that the conduct is not being condoned.

(ii) Prejudice to the Integrity of the Justice System

[48] With respect to the first step, in cases involving the residual category the question will be whether proceeding with the trial will have the effect of "lending judicial condonation to the impugned act": R. v. Babos, supra at para. 38. There are two situations where it will be paramount that there be no judicial condonation of the impugned act. The first is where it appears that the state misconduct is likely to continue in the future. The second is where the carrying forward of the prosecution will offend society's sense of justice: R. v. Zarinchang (2010), 99 O.R. (3d) 271 (C.A.) at para. 62; Canada (Minister of Citizenship and Immigration) v. Tobiass at para. 91.

[49] In this case, I am not persuaded that continuing with the prosecution will offend society's sense of justice. I am, however, concerned that the state misconduct is likely to continue in the future. The fact that s. 498(1)(d) of the Criminal Code creates a presumption of release and that mere non-residency by itself is insufficient to justify holding an individual for a bail hearing was made clear by Wilson J. in R. v. Jutras, supra more than six years before Mr. Provo's arrest. Notwithstanding this, there have been several cases where the same erroneous approach appears to have been taken by Ontario police forces.

(iii) The Availability of Alternative Remedies

[50] With respect to the issue of whether an alternative remedy is capable of redressing the prejudice, the Court in Babos stated (at para. 39):

Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

For the reasons outlined below, in my view there is an alternate remedy short of a stay of proceedings which will adequately dissociate the justice system from the impugned state conduct, namely, exclusion of the breath samples pursuant to s. 24(2) of the Charter. As a result, a stay is not appropriate.

[51] Given my conclusion respecting the second step of the Babos test, I need not engage in the balancing required by the third stage.

E. Remedy – Exclusion of Evidence Pursuant to Section 24(2) of the Charter

(i) The Threshold Issue

[52] Section 24(2) of the Charter empowers a trial court to exclude evidence as a remedy for a Charter breach provided that the evidence in question was "obtained in a manner that infringed" the Charter right. The courts have adopted a generous approach to this threshold issue, as was made clear by Doherty J.A., writing for the Court in R. v. Plaha (2004) at para. 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 (1996) at 492-97 (S.C.C.).

See also R. v. Wittwer, 2008 SCC 33 at para. 21 and R. v. Mian, 2014 SCC 54 at para. 83.

[53] In this case, there is clearly no causal connection between the decision to hold Mr. Provo for a bail hearing and the obtaining of the breath samples. Was there a temporal connection? The answer to this question depends on when the breach occurred. Most s. 9 breaches involve arrests without grounds so it is easy to pinpoint the time at which the breach occurred. In this case, Mr. Provo's initial arrest was lawful. It was the decision to hold him for a bail hearing without having the grounds to do so that constituted the breach. Based on Cst. Stevens's comments to Mr. Provo in the breath room ("If you don't get two readings over, you get back to your hotel tonight. If you do get two readings over, you get to stay at our hotel".), I find that there had been a tentative decision to hold him prior to the breath tests taking place which crystallized once the results were determined to be in excess of the legal limit. Based on what he had been told by Cst. Stevens, it would have been clear to Mr. Provo as soon as he learned of the test results that he would not be regaining his liberty. There was, therefore, a temporal connection between the breach and the obtaining of the evidence which was sufficient in my view to engage s. 24(2) of the Charter: R. v. Stevenson (2014), 2014 ONCA 842 at para 63; R. v. Fountain, 2015 ONCA 354 at paras. 42-46.

[54] I would have come to the same conclusion even if the decision had been made soon after the breath tests. I recognize that the issue of whether s. 24(2) can apply to evidence that was obtained prior to a Charter breach is not without controversy. There are certainly dicta from the Supreme Court of Canada which suggest that only breaches that precede the discovery of evidence can engage s. 24(2). In R. v. Strachan, Dickson C.J.C. stated (at p. 1005):

So long as a violation of one of these rights precedes the discovery of evidence, for the purposes of the first stage of s. 24(2) it makes little sense to draw distinctions based on the circumstances surrounding the violation or the type of evidence recovered. A better approach, in my view, would be to consider all evidence gathered following a violation of a Charter right, including the right to counsel, as within the scope of s. 24(2). [Emphasis added].

However, earlier in his reasons (at p. 1001), Dickson C.J.C. had cited with approval the following passage from LeDain J.'s dissent in R. v. Therens at p. 649:

In my opinion the words "obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter" particularly when they are read with the French version, "obtenues dans les conditions qui portent atteinte aux droits et libertés garantis par la présente charte", do not connote or require a relationship of causation. It is sufficient if the infringement or denial of the right or freedom has preceded, or occurred in the course of, the obtaining of the evidence. It is not necessary to establish that the evidence would not have been obtained but for the violation of the Charter. Such a view gives adequate recognition to the intrinsic harm that is caused by a violation of a Charter right or freedom apart from its bearing on the obtaining of evidence.

This suggests that s. 24(2) is engaged where the breach precedes or occurred in the course of obtaining the evidence.

[55] In R. v. Mian, supra, the Supreme Court of Canada upheld the trial Judge's decision to exclude cocaine seized from the accused on the basis of a violation of his s. 10(a) Charter right to be promptly informed of the reasons for his detention. In that case, the accused was arrested in his car. A search of the car immediately after the arrest resulted in the seizure of a quantity of cocaine. The accused was not advised of the reason for his arrest until 22 minutes later. As in this case, it is difficult to pinpoint in time when the breach took place. Nonetheless, the Court concluded that there was a sufficient temporal link between the breach and the seizure such as to engage s. 24(2).

[56] Given that a causal link between the breach and the obtaining of the evidence is not required, it is difficult to see why the sequence of events matters, provided that they are temporally linked in the same transaction. Causality is the only reason why a breach would have to precede the obtaining of the evidence. For example, in R. v. Flintoff (1998), the Court excluded breath test results that were obtained immediately following an unreasonable strip search. Writing for the Court, Finlayson J.A. held (at para. 30):

. . . [I]f an approach that focuses on the entire chain of events during which the Charter violation occurred and the evidence was obtained is adopted, then the temporal connection takes on greater importance. The breathalyzer test was tainted by the humiliating and unconstitutional strip search, which formed an integral part of a single investigatory transaction. It was also totally unnecessary. The investigating officer had already performed a search incident to arrest when he "patted the appellant down" on the highway. The temporal connection is sufficiently strong to permit me to conclude that it is not realistic to view the strip search as severable from the total investigatory process. The strip search was one link in the continuous chain of events involved in the investigation of the over 80 milligram offence.

[57] This line of reasoning would have been no less compelling if the strip search had occurred immediately after the breath test. The search and the test would still have been part of a single investigatory transaction. For this reason, in Hon. D.M. Paciocco and L. Steusser, The Law of Evidence, 7th ed. (Irwin: Toronto, 2015), the authors argue that there are

. . . sound reasons of policy for leaving this door open. Assume that the police discover marijuana during a lawful and reasonable pat-down search and then publicly and needlessly go on to strip search the suspect. Is a court to be deprived of the power to exclude the evidence because of the sequence of events? To insist on the breach preceding the discovery of evidence as an absolute precondition to exclusion means that ex hypothesi evidence can be admitted even where its admission would bring the administration of justice into disrepute

[58] For these reasons, in my view the breath tests results were "obtained in a manner" that infringed Mr. Provo's Charter rights. As a result, I must consider whether the admission of the evidence would bring the administration of justice into disrepute.

(ii) The Seriousness of the Breach

[59] The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, the first of which is the seriousness of the violation. In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[60] The breach in this case was serious. I draw this conclusion for four reasons. First, Parliament has devised a comprehensive statutory scheme setting out the conditions under which it is appropriate to hold an individual for a bail hearing rather than release him or her from the police station. It was clearly Parliament's intent that there be a presumption that individuals, including non-residents, be released unless the police have reasonable and probable grounds to believe that one of the situations set out in ss. 498(1.1)(a) or (b) applies. Rather than apply these sections, which are clearly designed to safeguard individual liberty, the police applied a misguided policy of holding all non-residents.

[61] Second, I find that Sgt. Laporte's claim that he made some sort of individualized assessment of Mr. Provo's circumstances to have been less than forthright. As stated earlier, it is my view that he tailored his evidence to meet the Charter application. This renders the breach more serious: R. v. Harrison, 2009 SCC 34 at para. 26.

[62] Third, what occurred in this case seems to be a systemic problem in Ontario. Previous judicial condemnation of the practice appears to have gone unheeded. This also renders the breach more serious: R. v. Harrison, supra at para. 25.

[63] Finally, there was more than one Charter breach. In addition to the s. 9 breach, I have found that the police also breached Mr. Provo's s. 10(b) Charter rights. As well, although not a constitutionally-protected right, Mr. Provo did have a right to be advised that he could contact the United States Consulate. The purpose of that right, which arises from article 36 of the Vienna Convention on Consular Relations, 1963, was described by Epstein J. (as she then was) in R. v. Partak (2001) at para. 37:

I find that the purpose of consular rights is to provide support and information to foreign nationals concerning local law to ensure equal treatment under that law. Accordingly, the reason the police are obliged to notify a detained foreign national of his right to have the consulate or embassy contacted, is to ensure that the detainee has access to the information and support their embassy can provide to them, as detailed above.

Despite being aware of the existence of their obligations in this regard, the police in this case chose to ignore them. In all, there was a pattern of disregard for Mr. Provo's rights.

(iii) Impact of the Breach

[64] Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. In this case, Mr. Provo could have been released from the police station no later than a few hours after his tests were complete. Instead, he spent over four days in custody. I recognize that part of this time was based on Mr. Provo's failure to appreciate that the Crown was consenting to his release, as well as his consideration of the possibility of pleading guilty. However, he never would have been in that situation in the first place had his rights not been violated. I note as well that it is precisely Mr. Provo's situation, that of an individual caught up in the unfamiliar legal system of a foreign country, that the Vienna Convention was designed to address. However, in this case, it was ignored by the police. I find that the impact of the breach on Mr. Provo's Charter-protected interests was significant.

(iv) Society's Interest in an Adjudication on the Merits

[65] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. This branch clearly favours admission of the evidence. The breath sample results are reliable and conclusive evidence of the offence and indispensable to the Crown's case.

(v) Balancing

[66] Having carefully considered the factors discussed above, I have concluded that the long-term repute of the administration of justice would be best served by the exclusion of the evidence. While I recognize the need to effectively prosecute drinking and driving offences, there is a pressing need for the Court to disassociate itself from the conduct of the police in this case. This type of Charter breach has been viewed by some courts as significant enough to warrant a stay of proceedings. While I have declined to grant a stay in this case, I have done so primarily because of the availability of another remedy, namely, exclusion of the evidence. It follows that the evidence must therefore be excluded.

IV. DISPOSITION

[67] The evidence of the concentration of alcohol in Mr. Provo's blood having been excluded, the Crown has failed to prove that it exceeded the legal limit at the time he operated a motor vehicle. The charge is dismissed.

Justice P.A. Schreck

Released: June 3, 2015