Court File and Parties

Ontario Court of Justice

Date: August 20, 2015

Court File No.: Central East - Newmarket 4911-998-12-10355-00

Between:

Her Majesty the Queen

— and —

Paul Sytsma

Before: Justice David S. Rose

Heard on: December 5, 2014 and February 25, 2015

Ruling on Charter Application and Reasons for Judgment

Released on: August 20, 2015

Counsel:

L. Thompson, for the Crown
D. Burke, for the defendant Paul Sytsma

ROSE J.:

Overview

[1] Paul Anthony Sytsma is charged with Drive Over 80 on December 11, 2012. His trial on that charge commenced before me on December 5, 2014 and evidence completed on February 25, 2015. Mr. Sytsma alleges an infringement of his rights under ss. 8 and 9 of the Charter and seeks exclusion of evidence under s. 24(2) and a stay of proceedings under s. 24(1) of the Charter.

Facts

[2] On December 11, 2012, Cst. Sidenberg of the York Regional Police was operating a RIDE program with the assistance of a mobile RIDE truck. This was set up on King Road, west of Yonge Street. The RIDE program was fairly typical insofar as it had the truck, lights and officers present on the roadway. At 10:28 p.m. a grey Toyota vehicle travelling eastbound entered the RIDE stop. Constable Sidenberg identified Mr. Sytsma was the only occupant of that vehicle. Sidenberg described the weather as being cold, but there was no snow on the roadway. When Mr. Sytsma's vehicle stopped it was the only vehicle in the RIDE stop.

[3] Sidenberg signalled Mr. Sytsma's vehicle to stop, which it did. Mr. Sytsma rolled down his window and the two had a discussion. PC Sidenberg could smell an odour of an alcoholic beverage from inside the vehicle, and when the two spoke he could smell that on Mr. Sytsma's breath. Mr. Sytsma denied consuming alcohol but based on his experience and the smell of the alcoholic beverage alone Sidenberg formed a suspicion that Mr. Sytsma had alcohol in his system and made an ASD demand.

[4] Mr. Sytsma provided a sample of his breath into the ASD, and the device registered a fail at 10:33 p.m. Sidenberg again asked him about alcohol consumption and Mr. Sytsma then said that his last drink was about 5 minutes before he was stopped. Because of that information PC Sidenberg chose to perform another ASD test in order to eliminate the possibility of mouth alcohol contributing to the failed ASD test. At 10:45 Sidenberg gave Mr. Sytsma a fresh mouthpiece and had him provide another sample. This resulted in a fail on the ASD. Mr. Sytsma was then arrested for Over 80, and given his Rights to Counsel. Sidenberg read him a breath demand, and brought him to the RIDE truck. There were no signs of impairment, such as slurred speech, but his eyes were bloodshot, and he had an odour of alcohol on his breath.

[5] The qualified breath technician PC Gabay received Mr. Sytsma at 10:55 p.m. Sidenberg gave Gabay his grounds for arrest, and explained that Mr. Sytsma was cooperative. PC Gabay administered the Breathalyzer test using an Intoxilyzer 8000C. The first sample was received at 11:04 p.m., and the second at 11:37 p.m. The first sample resulted in readings of 247 milligrams of alcohol per 100 millilitres of blood. The second was 230 milligrams per 100 millilitres of blood. PC Gabay testified that Mr. Sytsma was polite throughout the process. He was not belligerent or difficult. He had a clear understanding of the process. Gabay concluded that the effect of alcohol on Mr. Sytsma was slight and minor.

[6] PC Sidenberg testified that he received Mr. Sytsma back from Gabay at 11:30, along with the printouts from Mr. Sytsma's Intoxilyzer test and a Certificate of Qualified Breath Technician. There is a discrepancy in the evidence insofar as PC Gabay testified to receiving a second sample of breath from Mr. Sytsma at 11:37. Gabay's evidence was uncontradicted that he received the first sample at 11:04 p.m. which is 36 minutes after Mr. Sytsma was first stopped in the Toyota. Gabay's evidence about the second sample being taken 33 minutes later is only contradicted by Sidenberg.

[7] Mr. Sytsma was then given over to PC Rorke, who took custody of Mr. Sytsma to escort him to 2 District Headquarters. PC Sidenberg testified that this was because the breath readings were so high. He left the scene on his own, arriving at 2 District at 11:55 p.m. When Sidenberg arrived at 2 District Mr. Sytsma was already there. He served Mr. Sytsma with documents, including a notice that he was on camera in the cell area. That document was served on Mr. Sytsma while he was already in the cells, at 12:55 on the morning of December 12. Sidenberg served that document as well as a Certificate of Qualified Breath Technician. Mr. Sytsma refused to sign the Certificate, although Sidenberg described him as cooperative throughout the evening.

[8] PC Sidenberg testified about his knowledge of the video camera recordings in the cell area. He was aware that the cells are videotaped. He was aware of a change in the way the cameras were positioned but unable to say what the details were. He testified in cross-examination that the decision to hold someone in a situation like Mr. Sytsma's is made by the Officer in Charge.

[9] Mr. Sytsma was taken to 2 District by Cst. Rorke, who presented him to Sgt. Robertson, the booking sergeant. He had no specific recollection of what happened at the booking procedure.

[10] Mr. Sytsma testified at the trial. He is a civil engineer by background, he testified about his alcohol consumption the night of his arrest. He was at a corporate event, which he left at 10:00 p.m. He recounted the process by which he supplied breath samples and was charged with Over 80. When he got to the police station he asked the officers if he could contact his wife to let her know what had happened and if she could pick him up but that was denied. He was taken to a jail cell. He was released at 6:45, about 7 hours after his arrest. No reason was given to him about why he was held that long.

[11] Mr. Sytsma was shown a video in court which was taken from a camera in his cell at 2 District. It shows him having a discussion with officers at the cell door receiving documents. He said that it was at that moment he was discussing contact with his wife. He says he was told that the officers would approach the staff sergeant. The videotape captures Mr. Sytsma using the washroom facilities in the cell area. He testified that he was shocked when he learned that he was videotaped using the washroom.

[12] In cross-examination Mr. Sytsma said that he typically watches what he drinks at social events. He felt fine about driving home.

[13] Mr. Sytsma had no recollection about being told that the cells were recorded. He admitted that it was possible that he was given a written notice about the cells being videotaped. He admitted that the videotape taken of him in the cells shows him going to the washroom though the viewer cannot see his boxer shorts or genitals. The video has a side view of him. He testified that "It's not embarrassing. It's more – I can't believe there's a video out there like that…it's a violation of privacy. That's the way I feel." At the request of counsel the video was marked as an exhibit to the trial.

[14] Mr. Sytsma's partner Lisa Leighton also gave evidence. She testified about being distraught about the unexplained absence of Mr. Sytsma the night he was arrested. She was certainly in a position to retrieve Mr. Sytsma from the police station had she known that he was there and also known he was out of custody.

Issues

1. Has the Crown proven requirements of s. 258(1)(c)?

[15] No legal issues were identified by the defence in regards to the elements of the offence.

[16] The breath samples were received by Cst. Gabay into an approved instrument at 11:04 and 11:37 p.m. PC Gabay testified that the approved instrument will only receive breath samples after a wait of a minimum of 17 minutes. There was no explanation about why the second sample was not taken as early as 11:21, or 16 minutes earlier than was the case. I am reminded while the Crown bears the ultimate burden of proof it need not provide an explanation for each minute in the investigation. As Juriansz J.A. said in R. v. Singh 2014 ONCA 293:

The requirement that the samples be taken "as soon as practicable" does not mean "as soon as possible". It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

[17] The evidence proves that the Breathalyzer portion of the investigation was commenced some 36 minutes after, and completed one hour and 9 minutes after Mr. Sytsma's vehicle was first stopped. I have no difficulty in finding that the breath samples were taken as soon as practicable. I find that the 7 minute discrepancy between when PC Sidenberg says he received Mr. Sytsma and when PC Gabay said that he received the second sample to be immaterial to either the as soon as practicable issue or the actual time of the offence. Neither PC Sidenberg nor PC Gabay was ever questioned about the discrepancy which I would describe as minor. I accept PC Gabay's evidence as first hand unchallenged evidence regarding the time of the second breath sample. Each element of the offence has been proven.

2. Is there a s. 8 breach arising from the video taping of Mr. Sytsma in his cell?

[18] The facts at trial establish that once investigation of Mr. Sytsma was completed Mr. Sytsma was taken to 2 District and lodged in a cell. A video from inside the cell was entered at the trial. It shows Mr. Sytsma meeting with Cst. Sidenberg at 12:55 a.m. and at approximately 4:16 he urinates in the facilities within the cell. The video does not show his underwear or genitals. I accept Mr. Sytsma's evidence that he is not embarrassed by the video recording but subjectively feels that his privacy has been violated. I also accept Cst. Sidenberg's evidence that there has been a change in the way that York Regional Police record arrestees lodged in cells since Mr. Sytsma's arrest, although no details of that policy change were given in evidence.

[19] In R. v. Mok 2014 ONSC 64, Boswell J. sitting as a summary conviction appeal court found the following as a matter of law:

Arrestees lodged in police cells have a lowered expectation of privacy but do nonetheless retain a minimal level of privacy;

Notification to the Arrestee of videotaping within the cell area is not a complete answer to its invasiveness. This is because arrestees are not free to avoid the videotaping, nor are they able to avoid holding off the use of the washroom facilities in the cell. In other words arrestees are forced to submit to videotaping all their movements while in custody.

Safety reasons do not require videotaping everything that happens in a detention cell. Use of modesty screens would not significantly hamper the police custodian's ability to monitor the health and safety of prisoners, and would have no real effect on loss of evidence.

[20] I therefore find that Mr. Sytsma's subjective expectation of privacy was objectively reasonable, and that the video taping of him urinating amounted to a s. 8 violation under the Charter of Rights and Freedoms.

3. Is there a s. 9 breach?

[21] In the circumstances, the Crown concedes that there has been a s. 9 breach insofar as there was no evidence lead at trial to explain the reason why Mr. Sytsma was released from custody a little more than 7 hours after investigation of him was completed. This is a fair concession. I therefore find a s. 9 breach flowing from Mr. Sytsma being detained in custody from 11:37 p.m. when he provided a second breath sample until 6:45 a.m. the next day when he was released.

4. Remedy for the Charter violations.

Exclusion of Evidence under s. 24(2)

[22] The defence asks for an exclusion remedy under s. 24(2) under the Charter. As a threshold issue, the question is whether the evidence was obtained in a manner which brings the administration of justice into disrepute. This threshold analysis is required where the impugned evidence is not obtained by the state proximate to the Charter violation. Here Mr. Sytsma's breath readings were obtained by Cst. Gabay at 11:04 and 11:37 p.m. on December 22, 2012. Mr. Sytsma was then taken to 2 District HQ arriving at 11:55 p.m., where he was lodged in a cell and subject to video recording. His release from custody was several hours later, at 6:45 a.m. Mr. Sytsma is charged only with Over 80, and so the investigation of him was completed at 11:37 p.m. The Charter violations under ss. 8 and 9 were made after any evidence was obtained by the police.

[23] In R. v. Manchulenko 2013 CarswellOnt 12282 (Court of Appeal), Watt J.A. observed that there is a threshold question involved in s. 24(2) of the Charter, namely, was the evidence obtained in a manner which brings the administration of justice into disrepute.

Section 24(2) of the Charter only excludes evidence where an accused has demonstrated, on a balance of probabilities, an infringement or denial of his or her enumerated Charter rights or freedoms, and that the evidence proposed for admission was "obtained in a manner" that infringed or denied the accused's Charter right or freedom. This latter requirement insists that there be a nexus, expressed in the language "obtained in a manner" in s. 24(2), between the infringement and the evidence proposed for admission. In the absence of a nexus, or of an infringement, s. 24(2) has no application and the admissibility issue must be resolved otherwise.

Stay of proceedings under s. 24(1)

[26] It is axiomatic that a stay of proceedings should only be granted for the clearest of cases and as a last resort, see R. v. O'Connor, and more recently R. v. Babos 2014 SCC 16. The threshold for a stay of proceedings is quite high.

[27] I find that Mr. Sytsma's right to a fair trial is not compromised by either the s. 8 or s. 9 breach. There is nothing in the s. 8 or s. 9 Charter violations which affects the conduct of the trial or Mr. Sytsma's ability to defend himself. But that is not the only basis upon which a stay of proceedings may be granted. In Babos the Supreme Court examined the residual category of cases where state conduct may lead to a stay of proceedings. This is because the impugned conduct risks undermining the integrity of the judicial process. The test for a stay of proceedings is the same and has three requirements:

i – there must be prejudice to the accused right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome;

ii – there must be no alternative remedy capable of redressing the prejudice; and

iii – where there is still uncertainty over whether to grant after i and ii the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.

[28] Where the residual category is engaged Stage i is answered when the state has engaged in conduct which is offensive to societal notions of fair play and decency and proceeding to a trial in the face of that conduct would be harmful to the integrity of the justice system. Stage ii focusses on whether an alternative remedy short of a stay of proceedings will adequately address the impugned conduct. Stage iii will be answered in favour of a stay if granting the stay better protects the integrity of the justice system rather than proceeding to a trial on the merits. It is a balancing process. Again I turn to Babos at paragraph 41:

Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.

[29] Applying these principles I find that neither of the Charter breaches are egregious. Mr. Sytsma's opinion of the video recording was that "It's not embarrassing. It's more – I can't believe there's a video out there like that. …It's a violation of privacy. That's the way I feel." It is also a fact that neither his genitals nor his underwear are visible on screen. There is no suggestion that the officers dealing with Mr. Sytsma were impolite or unprofessional. This places the s. 8 violation in the much less serious range. The cell videotaping has been addressed by a change in policy, although I acknowledge that there is no evidence about the details of that change in policy. The facts in this case transpired before the Superior Court ruling in Mok 2014 ONSC 64, and therefore I cannot find that the videotaping of Mr. Sytsma reflected a disregard of Justice Boswell's suggestion that privacy screens be installed in holding cells, see Mok at para. 80.

[30] As regards to the s. 9 violation, in R. v. Iseler, the Ontario Court of Appeal upheld a conviction in an impaired driving case where the Appellant sought a stay of proceedings at trial for an overholding. In Iseler the Appellant was released over 11 hours after providing breath samples with readings of .177 and .175. The overholding was several hours shorter than the evidence before me. Notably, Iseler dealt with the issue of the stay of proceedings as a trial fairness issue (at para. 31), and not as a residual category case.

[31] In R. v. Price, 2010 ONSC 1898, Durno J. upheld a conviction where the Appellant had sought a stay of proceedings for an overholding of 6 ½ hours. Similar to the case at Bar, in Price the Appellant's wife was available to pick him up much earlier. In that case the overholding was found to be "relatively minor" (see Price at para. 97).

[32] In applying the principles governing a stay of proceedings I find that the overholding in this case, and therefore the s. 9 breach was relatively minor. Mr. Sytsma testified that he asked the officers at 2 District when he would be released and received no answer, but beyond that there is no evidence that he was treated improperly or unprofessionally. He gave no evidence to that effect, and there is no evidence elsewhere in the trial record that can support that finding. The time period of the overholding, while amounting to a s. 9 breach, is not so long that I can find it to be more than a minor breach. I recognize that there is no hard and fast rule regarding when an overholding period becomes so long as to be serious. Where the Accused is held beyond 24 hours before being brought before a Justice there is some authority for the proposition that the s. 9 violation is serious, and a stay of proceedings appropriate, see R. v. Simpson. Each case turns on its own facts.

[33] As I have said above, the breath samples were obtained prior to Mr. Sytsma's arrival at 2 District, and so there is no nexus between the overholding at 2 District and the evidence against him. Under the first step of the test for a stay there is no prejudice to the accused's right to a fair trial.

[34] Is there another remedy which might redress the prejudice? I find that there is. There is ample authority for applying s. 24(1) of the Charter to suspend the constitutional minimum of a $1000 fine. See for example Price at paras. 96 – 98, or more recently R. v. Robb 2014 ONCJ 514; R. v. Sukraj, 2015 ONCJ 260, [2015] O.J. No. 2426 at para. 91; R. v. Morgan, [2014] ONSC 6235 at para. 64. There being an alternative remedy available, the case for a stay falls away. I would add to this point that the reason in Simpson why a stay was granted for an overholding is that in that case there was no evidence collected proximate to the Charter breach, nor a mandatory minimum punishment. The Appellant in Simpson was charged with Assault Causing Bodily Harm and Public Mischief.

[35] Here the Accused provided breath samples which were extremely high – namely three times the legal limit. There is no evidence that these readings were the reason for the overholding. Indeed, there is clear authority for the proposition that a variety of factors should be considered when considering when to release a prisoner from the station, see Price at para. 93. Nonetheless, society has a very considerable interest in having a trial on the merits on an Over 80 case where the readings are that high. Had I not found that there was an alternate remedy in the form of a sentence lower than the mandatory minimum, I would have found that, balancing the nature of the Charter breach, against society's interest in a trial on the merits, a stay was not appropriate. This is nowhere near the clearest of cases for a stay, nor the remedy of last resort.

[36] In the result, the Application for exclusion of evidence or a stay of proceedings is dismissed. The Crown has proven its case and the accused is found guilty of Over 80. I will hear submissions on an appropriate sentence given my findings above.

Released: August 20, 2015

Signed: "Justice David S. Rose"

R. v. Sytsma, 2015 ONCJ 462

Case Summary