Court File and Parties

Date: 2016-04-06

Court File No.: Brampton 15-1097

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Tanveer Cheema

Before: Justice P.A. Schreck

Heard on: February 12, 2016

Reasons for Sentence

Counsel:

• R. Prihar, for the Crown
• D. Lent, for the Defendant

SCHRECK J.:

[1]

On February 3, 2016, following a trial, Tanveer Cheema was found guilty of driving with an excess amount of alcohol in his blood, contrary to s. 253(1)(b) of the Criminal Code. At his trial, he alleged violations of his ss. 8, 9 and 10(b) Charter rights and sought as a remedy a stay of proceedings or the exclusion of evidence. In my reasons for judgment (R. v. Cheema, 2016 ONCJ 61) I found that there had been no s. 8 or 10(b) violation, but that Mr. Cheema's s. 9 rights had been violated on the basis that he had been unjustifiably held at the police station for several hours after he ought to have been released. I held that neither a stay of proceedings nor the exclusion of evidence were appropriate remedies, but I invited counsel to make submissions with respect to the suitability of a sentence reduction as a remedy. Crown counsel took the position that the appropriate remedy was a reduction to the statutory minimum sentence. Counsel for Mr. Cheema submitted that something below the minimum was appropriate, namely, a conditional discharge and no driving prohibition.

I. THE FACTS

A. The Offence

[2]

On January 15, 2015, Mr. Cheema was out with a friend, Amber Kandola, in a car belonging to her parents. Initially, Ms. Kandola was driving. They stopped at a fast food restaurant to get something to eat, where Ms. Kandola's car collided with a pole, causing some damage to the bumper. Ms. Kandola became very upset and panicked as a result of the collision. Even though he had been consuming alcohol, in an attempt to calm her down Mr. Cheema offered to drive home. Mr. Cheema's and Ms. Kandola's homes were close together and not far from the fast food restaurant. Mr. Cheema drove the car to the parking lot of a school near where he and Ms. Kandola lived. Ms. Kandola did not want her father to notice the damage to the car before she had a chance to speak to him, so their plan was to leave the car in the parking lot and walk home from there.

[3]

While Mr. Cheema was driving, the car was noticed by a police officer, Cst. Malott, who decided to follow it into the parking lot and conduct an investigation. When Cst. Malott spoke to Mr. Cheema, he noticed indicia of alcohol consumption. As a result, he made a demand that Mr. Cheema provide a breath sample into an approved screening device. Mr. Cheema did so and the device registered a fail. Mr. Cheema was accordingly arrested and taken to 21 Division, where he provided two samples of his breath into an approved instrument, resulting in readings of 156 and 144 mg of alcohol per 100 ml of blood.

B. The Offender

[4]

Mr. Cheema is 25 years old and has no prior criminal record. He resides in Brampton with his parents and brother. Mr. Cheema has been employed by York Region as a paramedic for over two and a half years.

[5]

A number of letters written by co-workers and friends were filed at the sentencing hearing. They all describe Mr. Cheema as a person of integrity and a hard-working and dedicated paramedic. They all describe the offence as being completely out of character for him.

[6]

I have been advised that as a result of being found guilty of this offence, Mr. Cheema is likely to lose his employment as a paramedic. He has been suspended without pay pending his sentencing.

II. THE CHARTER BREACH

[7]

Mr. Cheema was arrested at 2:49 a.m. and taken to 21 Division for breath tests. The testing was completed at 4:38 a.m. and Mr. Cheema was served with the necessary documentation at 4:50 a.m. He was eventually released at 9:15 a.m., about four hours and 20 minutes after the completion of the investigation. I found that Mr. Cheema's s. 9 Charter rights had been infringed for the following reasons (R. v. Cheema, supra at paras. 29-30):

While it is open to the police to hold an accused following breath tests, the decision to do so must be a reasonable one based on relevant factors: R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.) at para. 93. In this case, Sgt. Gonsalves testified that he made the decision about when Mr. Cheema should be released. However, he was unable to coherently articulate the basis for his decision. He testified that he considered Mr. Cheema's "physical characteristics", but he never interacted with him personally and there was no evidence that anything about Mr. Cheema's physical characteristics would have made it inappropriate to release him. Having considered his evidence as a whole, it seems clear to me that the real reason Mr. Cheema was not released until 9:15 a.m. was because Sgt. Gonsalves was busy doing other things.

I appreciate that being the officer in charge of a police station is a significant responsibility and officers have to make decisions about which tasks to prioritize. However, ensuring that individuals are not deprived of their liberty longer than necessary is mandated by the Charter. It is not on the same footing as briefing officers beginning their shifts or attending meetings. It must be given priority. Sgt. Gonsalves's failure to turn his mind to Mr. Cheema's release as soon as the investigation was over resulted in a violation of his s. 9 Charter rights: R. v. Iseler (2004), 190 C.C.C. (3d) 11 (Ont. C.A.) at para. 25; R. v. Price, supra at para. 83.

I also made the following observation (at para. 35):

Some further comment is warranted before leaving this issue. R. v. Price, supra is a decision from this jurisdiction which clearly sets out how release decisions are to be approached and what factors are to be considered. Although Price was released in 2010, Sgt. Gonsalves seemed to be unaware of the decision. There appear to be a significant number of "overholding" cases in this jurisdiction. As in this case, most courts have declined to order stays of proceedings or exclude evidence, but have made it clear that the principles in Price are to be followed. Notwithstanding repeated clear judicial direction, it is not clear that police practices have changed. In these circumstances, it could appear to a reasonable observer that as long as convictions are not at risk, complying with the Charter is of less concern to the police. If it were ever established that this were the case, then more drastic remedies may be in order.

III. ANALYSIS

A. The Availability of a Sentence Reduction as a Charter Remedy

[8]

The use of a sentence reduction as a remedy for a Charter breach was considered by the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. The Court held that in most cases, where the state conduct giving rise to the Charter breach relates to the offence or the offender, it can properly be taken into account in determining a fit sentence without resort to s. 24(1) of the Charter, provided that the sentence imposed comports with the applicable legislation, including any mandatory minimums. However, the Court left open the possibility that in some circumstances, s. 24(1) of the Charter could allow a court to impose a sentence below the mandatory minimum. Writing for the Court, Lebel J. stated (at para. 6):

A sentence reduction outside statutory limits does not generally constitute an "appropriate" remedy within the meaning of s. 24(1), unless the constitutionality of the statutory limit itself is challenged. However, the remedial power of the court under s. 24(1) is broad. I therefore do not foreclose the possibility that, in some exceptional cases, a sentence reduction outside statutory limits may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and the offender.

He later stated (at para. 64):

A few final comments about the position of the Charter in relation to the sentencing process are in order. Like other legal processes, the sentencing system remains subject to the scrutiny of the Charter and its overarching values and principles. Although, as we have seen above, the proper interpretation and application of the sentencing process will allow courts to effectively address most of the situations where Charter breaches are alleged, there may be exceptions to this general rule. I do not foreclose, but do not need to address in this case, the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter, may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender. In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents.

[9]

Thus, it appears that a sentence reduction below the statutory minimum is an available s. 24(1) remedy if (1) the breach relates to the offence or the offender; (2) the breach is "particularly egregious" and (3) the reduction below the minimum is the sole effective remedy.

B. Did the Breach Relate to the Offence or the Offender?

[10]

A Charter breach can be said to relate to the offender where the conduct giving rise to the breach causes prejudice to the accused: R. v. Nasogaluak, supra at para. 51. "Overholding" of the type that occurred in this case results in a deprivation of liberty and clearly falls into this category: R. v. Nasogaluak, supra at para. 58.

C. Was the Breach "Particularly Egregious"?

[11]

The Court in Nasogaluak did not explain what it meant by the term "particularly egregious". "Egregious" is defined as "conspicuously bad" (Merriam Webster Dictionary) or "outstandingly bad; shocking" (Oxford English Dictionary). The Court must have been referring to something less than conduct that would warrant a stay of proceedings, that is, conduct that "shocks the community's conscience and/or offends its sense of fair play and decency": R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 41. In my view, the term "particularly egregious" refers to Charter violations that are significantly serious, have a significant impact on the accused, or both.

[12]

Both the seriousness of the violation and its impact on the accused are part of the analysis that must be undertaken in determining whether evidence should be excluded pursuant to s. 24(2) of the Charter. The determination of the seriousness of a breach was explained in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 74:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Similarly, in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, the Court stated (at para. 22):

At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[13]

With respect to evaluating the impact of the breach on the accused, the Court in Grant stated (at para. 76):

This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

[14]

In this case, Sgt. Gonsalves did not set out to intentionally violate Mr. Cheema's Charter rights. However, he completely failed to turn his mind to the issue of whether Mr. Cheema's continued detention was necessary or justified, choosing instead to give priority to various administrative tasks. Moreover, it appears that he was completely unaware of the decision in R. v. Price, supra, a case from this jurisdiction that carefully sets out the factors that an officer in Sgt. Gonsalves's position should consider to ensure that a detainee's Charter rights are protected. In his testimony, Sgt. Gonsalves acknowledged that he did not consider several of the factors set out in Price or make any of the inquiries that would have provided him with the necessary information.

[15]

Based on the foregoing, I conclude that while Sgt. Gonsalves did not deliberately violate Mr. Cheema's Charter rights, he ought to have known that his conduct was not Charter-compliant. In my view, he demonstrated a reckless disregard for the Charter.

[16]

In addition to this, it appears that a s. 9 breach resulting from "overholding" is not a unique occurrence in this jurisdiction: R. v. Mazzuchin, [2016] O.J. No. 371 (C.J.) at para. 93; R. v. Corbassen, [2015] O.J. No. 5298 (C.J.) at paras. 11-16; R. v. Pogson, [2015] O.J. No. 268 (C.J.) at para. 261; R. v. DeLima, [2010] O.J. No. 2673 (C.J.) at para. 29; R. v. Dunn, [2009] O.J. No. 6296 (C.J.) at para. 8; R. v. Owen, [2001] O.J. No. 6334 (C.J.) at paras. 16-17; R. v. Ewert (unreported, April 15, 1999, Ont. C.J.); R. v. Price, supra. The fact that this type of conduct continues to occur despite repeated judicial disapprobation also renders the breach more serious: R. v. Harrison, supra at para. 25.

[17]

With respect to the impact of the breach, Crown counsel in submissions referred to the overholding in this case as being "only four hours and 20 minutes". I am aware that there are judgments of this court that view "overholding" cases as minor Charter breaches. With respect, I take a different view. It must be remembered that notwithstanding the breath test results, at the time Mr. Cheema was unjustifiably detained he was presumed innocent of the offence. In almost any other context, an unjustified detention for several hours would be viewed as a significant violation. While there have undoubtedly been overholding cases involving significantly longer durations than in this case, as the Supreme Court of Canada recognized in R. v. McKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 (at para. 133), "an arbitrary detention of any length . . . has a substantial impact on a person's Charter-protected interests".

[18]

Because the breach in this case was serious and its impact was relatively significant, in my view the breach may properly be characterized as "particularly egregious".

D. Is a Reduction Below the Minimum the Sole Effective Remedy?

[19]

I have already determined that other remedies, such as a stay of proceedings or the exclusion of evidence, are not appropriate in this case. The remaining issue is whether a sentence reduction within the statutory parameters is an effective remedy. To answer this question, I must determine what the appropriate sentence would be prior to any reduction as a remedy for a Charter violation.

[20]

Mr. Cheema has no prior record, although that is not unusual in the drinking and driving sentencing context. The concentration of alcohol in his blood, as revealed by the two readings of 144 and 156 mg of alcohol per 100 ml of blood, was relatively high, although below the level deemed in s. 255.1 of the Criminal Code to be aggravating.

[21]

There are, however, three factors in this case that are somewhat mitigating. The first is the reason why Mr. Cheema chose to drive, that is, to assist his friend who was too upset to drive after having been involved in a minor accident. To be clear, this does not excuse his conduct. His decision to drive rather than call a taxi or a friend or relative was clearly an exercise in very poor judgment and makes him fully guilty of the offence. However, in my view it is a factor that is somewhat mitigating. The second factor is that Mr. Cheema is of prior good character and a dedicated and hard-working paramedic. The third factor is the effect that the finding of guilt will have on Mr. Cheema's employment as a paramedic. Regardless of whatever sentence I impose, the Ministry of Transportation will almost certainly suspend his driver's licence, which would make it impossible for him to work as a paramedic. In all likelihood, he will lose his job, which he presumably spent a considerable amount of time training for.

[22]

Absent any consideration of the Charter breach, in my view the appropriate sentence would be something at or near the statutory minimum. It follows from this that imposing the statutory minimum as a Charter remedy would be, in effect, no remedy at all: R. v. Evong, [2014] O.J. No. 6435 (C.J.) at paras. 96-97. As a result, a sentence below the statutory minimum is the sole effective remedy. There is authority supporting the use of a sentence below the mandatory minimum as a remedy for a s. 9 violation arising from "overholding": R. v. Coyle (2013), 2013 ONSC 6925, 57 M.V.R. (6th) 12 (Ont. S.C.J.) at para. 82; R. v. Waisanen, [2013] O.J. No. 4835 (S.C.J.) at para. 34.

E. The Remedial Objectives of a Sentence Reduction

[23]

Sentencing has a communicative function. In addition to communicating denunciation of the offender's conduct, a sentence can also be used as an expression of judicial disapprobation of improper state conduct, even where a Charter violation is not established. This was made clear in R. v. Nasogaluak, supra at para. 49:

Indeed, s. 718 of the Criminal Code describes the fundamental purpose of sentencing as that of contributing to "respect for the law and the maintenance of a just, peaceful and safe society". This function must be understood as providing scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Provided that the impugned conduct relates to the individual offender and the circumstances of his or her offence, the sentencing process includes consideration of society's collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society.

[24]

Preventing judicial condonation of unacceptable behaviour by state actors can also be the purpose of a s. 24(1) Charter remedy: K. Roach, Constitutional Remedies in Canada, 2nd ed. (Toronto: Canada Law Book, 2014) at ¶ 9.60. In my view, that ought to be one of the purposes of the remedy granted in this case, together with compensating Mr. Cheema for the time he was unjustifiably deprived of his liberty. At the same time, the sentence imposed must be consistent with the principles of sentencing.

IV. THE SENTENCE IMPOSED

[25]

In this case, specific deterrence and rehabilitation are not, in my view, concerns. I am satisfied that the offence was out of character for Mr. Cheema and that it is most unlikely that he will ever find himself before the courts again. With respect to general deterrence, the mandatory minimum will, of course, continue to be in effect. Anybody contemplating committing such an offence can hardly count on a sentence below the minimum because of a Charter violation. Indeed, it is hoped that this case will drive home to the police the importance of respecting the liberty interests of those they investigate and that such violations will rarely, if ever, occur in the future. Similarly, with respect to denunciation, the continued existence of the mandatory minimum will make clear society's disapprobation of driving after consuming an excess amount of alcohol. Nothing in these reasons can or should be taken as minimizing the gravity of such conduct, the consequences of which can sometimes be unspeakably tragic: R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (S.C.J.).

[26]

For the foregoing reasons, as a s. 24(1) remedy for the s. 9 Charter violation, Mr. Cheema is granted a conditional discharge. In my view, depriving the state of a conviction, but without resorting to the drastic remedy of a stay of proceedings, is necessary to make clear that the Court cannot condone the cavalier attitude towards individual liberty interests demonstrated by the police in this case, as well as to take into account the time Mr. Cheema spent in custody unnecessarily. To ensure that the public is protected, Mr. Cheema will be placed on probation for a period of 12 months. He is to report to a probation officer once and thereafter as required, he is not to operate a motor vehicle except while travelling to and from his place of employment or during the course of his employment and he is to complete 50 hours of community service in accordance with a schedule to be determined by his probation officer.

Justice P.A. Schreck

Released: April 6, 2016