Court Information
Court: Ontario Court of Justice
Before: Justice Sandra Bacchus
Heard: June 24, 25 and 26, September 22, 2015, October 2, 2015, November 17, 2015
Rulings Released: January 22, 2016
Parties
Crown/Respondent: Her Majesty the Queen Counsel: I. Shaikh
Defendant/Applicant: Tetyana Bobryshova Counsel: E. Ashurov
Introduction
[1] The applicant is charged with one count of Care and Control over 80 mg and one count of Impaired Care and Control. The applicant has applied for an order pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms staying these proceedings or in the alternative pursuant to section 24(2) to exclude all evidence including breath sample results, statements and observations of the applicant on the basis that her constitutional rights as guaranteed by sections 7, 8, 9, 10(a) and 10(b) of the Charter have been infringed.
Overview
[2] On May 22, 2014, sometime between 11:05 am and 11:08 am, the applicant was observed on Bayview Avenue, sitting in the driver's seat of her running vehicle, located in the live middle lane of traffic. The applicant's vehicle was stopped at the intersection just south of Sheppard.
[3] Matthew James, the civilian who made these observations, called 911 and was present when paramedics Nick Manos and John Mason arrived on scene at approximately 11:15 am.
[4] A preliminary assessment of the applicant was conducted by Mr. Mason as the applicant remained seated in the motor vehicle. The applicant appeared conscious and alert but was not verbally responding. More paramedics and an ambulance arrived on scene and took over from these first responders. A decision was made to transport the applicant to the hospital for further assessment.
[5] Police constable Craig Mackey testified that he arrived on scene at 11:14 am. Officer Mackey testified that he had a conversation with the paramedics and also observed the paramedics working with the applicant while she was in the vehicle. Officer Mackey testified that the applicant's motor vehicle was located one car length behind the white stop line of the intersection.
[6] Officer Mackey testified that he observed a 1/4 filled bottle of Jägermeister, 375ml green label on the front passenger seat of the applicant's motor vehicle next to a neatly folded LCBO bag all beside a brown suede purse.
[7] Officer Mackey testified that he opened the lid, and smelled the contents of the bottle to confirm it was alcohol. The bottle was seized by officer Mackey and later photographed. (Exhibit 4a, b, c)
[8] Mr. Manos and Mr. Mason testified that the other paramedics who came on scene took over and that they were no longer actively involved in assisting the applicant. The applicant was moved by ambulance personnel, not Mr. Manos and Mr. Mason, to an ambulance now on scene.
[9] Officer Mackey testified that when he entered the ambulance he detected a strong odor of an alcoholic beverage coming from the applicant.
[10] At 11:25 am when the applicant was in the ambulance awaiting transport by paramedics to North York General Hospital, Officer Mackey testified that he advised the applicant that she was under arrest for impaired care and control and attempted to read the applicant her rights to counsel and breath demand. However, Officer Mackey testified that there was a language barrier and he was unable to communicate with the applicant.
[11] Officer Mackey testified that the applicant kept talking over him and he was only able to understand that she was asking for a Russian or Italian interpreter.
[12] At 11:42 am Officer Mackey contacted a Toronto Police Service dispatcher to have a Russian speaking officer attend North York General hospital. Officer Mackey testified that he was aware that a Russian speaking officer was on shift at 32 division.
[13] The ambulance left the scene followed by Officer Mackey; at 11:49 am it arrived at North York General Hospital. While enroute, Officer Mackey also requested that a breath technician attend the hospital.
[14] At 11:55 am Officer Sergiy Lobanegs, a Russian speaking officer, attended the hospital. Officer Lobanegs testified that Officer Mackey had requested that he translate for the applicant her rights to counsel, caution and secondary caution which he did.
[15] At 12:05 pm police constable Shawn McConnell, a qualified breath technician, attended the hospital.
[16] At 12:08 pm Officer Lobanegs made a demand to the applicant in Russian for the applicant to provide samples of her breath into an approved instrument.
[17] At 12:11 pm Officer McConnell set up the Intoxilyzer on a hospital bed and performed a series of checks to insure the machine was working properly. This took approximately 25 minutes.
[18] At 12:14 pm Officer Lobanegs escorted the applicant to the washroom at her request to use the facilities. Officer Lobanegs testified that the applicant was unsteady on her feet and made unnecessarily wide turns on the way. Officer Lobanegs agreed that he did not have to hold or support the applicant as she walked.
[19] By 12:18 pm the applicant had finished using the washroom and returned to the triage area. Officer Lobanegs observed that the applicant appeared to be making unusual gestures as if she were swatting flies away from around her head.
[20] The applicant requested to speak to a lawyer. Officer Mackey called the division and obtained the names of lawyers who deal with Russian speaking defendants.
[21] Between 12:18 pm and 12:20 pm Officer Mackey made a series of phone calls to lawyers from that list before he successfully contacted an available counsel. A private room with a closed door was set up for the applicant to facilitate her discussion with counsel.
[22] Between 12:23 pm and 12:25 pm the applicant spoke to counsel in private with the help of a translator provided by counsel.
[23] At 12:44 pm the applicant was turned over to the breath technician.
[24] Initially, the applicant provided three deficient samples. At 12:54 pm the first valid sample was obtained of 240 mg/100 ml of blood. At 1:16 pm Officer McConnell received the second sample from the applicant of 240 mg/100 ml of blood. (Exhibit 9)
[25] Officer McConnell testified that he made the following observations of the applicant: a strong odour of alcohol; blood shot, glassy, watery, heavy eyes; that she was flushed and sweating, talkative and crying intermittently. He testified that he categorized the signs of impairment as obvious. He testified that he did not observe anything untoward in relation to the applicant's motor skills or gait.
[26] At 1:22 pm the applicant was medically cleared by the doctor to leave the hospital.
[27] At 1:26 pm Officer Mackey testified that he was in his vehicle with the applicant in his custody in the parking lot of the hospital inputting information into the police Versadex system. Officer Mackey testified that he would not be able to enter the division without updating the police computer system in relation to the applicant's arrest. It took Officer Mackey 12 minutes to complete this task.
[28] At 1:38 pm officers Mackey and Lobanegs left the hospital arriving at 32 division at 1:53 pm.
[29] The applicant was paraded before the booking sergeant and at the completion of the booking process at 2:07 pm, a level 2 search of the applicant was ordered by the staff sergeant. The search was conducted by Officer Sabrina Ponzi.
[30] At 14:22 pm the applicant asked Officer Lobanegs if she could call her friend Lyudmyla and was permitted to do so. At 14:31 pm the applicant was lodged in the cells and at approximately 5:49 pm she was released.
Analysis
Issues to be Determined
A. Did Officer Mackey have reasonable and probable grounds to arrest the applicant?
B. Was the demand for breath samples made as soon as practicable and was the demand lawfully made?
C. Was the applicant advised of the reason for her arrest and detention and provided her right to counsel as well as a meaningful opportunity to consult counsel without delay?
D. Did the search and seizure of the applicant's bra constitute a violation of her section 7 Charter right?
E. Did the applicant's continued detention after the breath demand made at 12:08 pm and/or after the readings were obtained and she was medically cleared from the hospital, occur in violation of her section 9 Charter right?
Reasonable and Probable Grounds
[31] The defendant alleges a violation of her section 8 and 9 Charter rights on the basis that officer Mackey did not have reasonable grounds for the arrest and therefore no reasonable grounds to demand that a sample of the applicant's breath be taken pursuant to section 254(3) of the Criminal Code.
[32] The onus is on the crown to prove that the officer had reasonable and probable grounds to arrest the applicant and make the breath demand pursuant to section 254(3)(a), as the Crown seeks to rely on breath samples as a result of a warrantless search. The Court must be satisfied that the facts as found by the court objectively support the officer's subjective belief that the applicant had care and control of her motor vehicle while impaired. The question is whether on the totality of the evidence offered reasonable grounds on a subjective and objective basis exists. R v. Wang 2010 ONCA 435.
[33] In this case Officer Mackey testified to observing numerous indicia consistent with impairment. Specifically, Officer Mackey testified that he observed the following:
- that the applicant was groggy;
- that she did not appear to know where she was;
- that she did not seem coherent and it appeared that she was just waking up;
- that she was attempting to communicate with the paramedics;
- that the applicant's eyes were red;
- that the applicant was sweating profusely;
- that the applicant's motor skills were slow and she was dazed and confused;
- that the applicant was unsteady on her feet and had to be helped out of the vehicle by emergency services personnel.
[34] The two first responding paramedics, Nanos and Mason, who had the initial dealing with the applicant did not testify to making any of these observations of the applicant. Mr. Mason who conducted the preliminary medical assessment of the applicant testified that the applicant, though not responding to their questions, was alert and awake and he did not note the applicant's eyes to be red or any difficulty with her motor skills. Mr. Nanos testified that he did not recall seeing any unsteadiness in respect of the applicant or that she had to be helped into the ambulance.
[35] Certainly some of the inconsistencies in the evidence between Officer Mackey and that of Mr. Nanos and Mr. Mason can be accounted for by their differing vantage points and length of time the witnesses had to make their observations. Mr. Mason would have had a better opportunity to observe the applicant while she was in the vehicle; he was closer to her than Officer Mackey and presumably observing her closely as he conducted his assessment.
[36] Officer Mackey's view of the applicant, at least initially, would have been obstructed by the position of the first responder paramedics, the vehicle, and the position of the applicant in the vehicle which would have only offered him a profile or partial view of the defendant at best.
[37] In addition Officer Mackey was occupied seizing and examining the Jägermeister bottle and arranging for a tow of the applicant's vehicle.
[38] It is unclear at what point Officer Mackey has made the observation of the applicant to be sweating profusely, have red eyes, appear dazed and confused and incoherent as if she was waking up. Was it when she was in her vehicle at which time his observations contradict that of Mr. Mason or was it when the second set of paramedics came on scene that he observed the applicant attempting to communicate?
[39] Further, was Officer Mackey's initial perception of the applicant unduly influenced or clouded by his observation of the almost empty liquor bottle next to her?
[40] The evidence is unclear.
[41] In light of the questions which remain regarding the reliability of this aspect of Officer Mackey's evidence and the apparent external inconsistences between Officer Mackey's evidence and that of the first responder Mr. Mason, I find that I am not satisfied that the specific indicia testified to by Officer Mackey that the applicant had red eyes, was sweating profusely and appeared dazed and confused, seemed incoherent and was waking up and was trying to communicate with paramedics while in her vehicle, is objectively reasonable and therefore capable of forming grounds for the applicant's arrest for Impaired Care and Control.
[42] On the other hand, Officer Mackey in his evidence specifically referred to seeing the ambulance personnel escorting the applicant from her vehicle. The ambulance personnel were described as two females and clearly were not Mr. Nanos or Mr. Mason who testified that they played no role in escorting the applicant from the motor vehicle to the ambulance. It is clear from the totality of the evidence that the applicant was taken from her vehicle at a point in time after she had been initially assessed by Mr. Mason.
[43] Officer Mackey's evidence regarding the applicant being helped from the vehicle although initially somewhat of an elaboration with his choice of the word "extracted", was in the main consistent and detailed in his description of how he saw the applicant move from the vehicle.
[44] Further, Officer Mackey's observation that the applicant was unsteady is consistent with observations made by officers Lobanegs and McConnell at the hospital.
[45] Neither Mr. Manos nor Mr. Mason testified that they observed anything untoward about the applicant's movements or motor skills. They testified they did not recall seeing the applicant escorted from the vehicle and do not recall her having balance difficulties. Given the number of other paramedics that arrived on scene and that they had now completed their role in dealing with applicant I find that the failure of Mr. Nanos and Mr. Mason to recall or be in a position to see the applicant's movements does not detract from Officer Mackey's evidence in this respect.
[46] In respect of the smell of alcohol from the applicant while she was in the ambulance I find Officer Mackey's evidence was measured and consistent. He was careful to say that he did not smell any alcohol from the applicant when she was in her own vehicle or outside the vehicle and it was not until she was on board the ambulance that he detected the odor of alcohol.
[47] In addition Officer Mackey's testimony regarding the smell of alcohol is consistent with the evidence of Officers Lobanegs and McConnell who had their primary dealings with the applicant at the hospital in an enclosed environment.
[48] Again, Mr. Nanos and Mr. Mason do not testify to smelling alcohol on the applicant. However, neither Mr. Manos nor Mr. Mason entered the ambulance. It is clear as well that when Mr. Mason was dealing with the applicant in her motor vehicle she did not attempt to speak. As such the opportunity to detect alcohol from the applicant's breath did not present itself in the way it did when Officer Mackey dealt with the applicant in the ambulance and she was trying to communicate with him.
[49] I find that the credible and reliable evidence regarding Officer Mackey's grounds to arrest the applicant did exist. Discounting the evidence which I have found to be inconsistent and unreliable the reasonable grounds for the arrest are as follows:
- That the vehicle was running, keys were in the ignition and the gear shift had to be moved to put the vehicle in park by the paramedics, information Officer Mackey received from the paramedics when he first arrived on scene;
- That the applicant was clearly occupying the driver's seat of the vehicle;
- That the vehicle was located in a live lane of traffic just ahead of the intersection;
- That there was a ¾ empty bottle of Jägermeister liquor sitting next to the applicant in the passenger seat of the motor vehicle, along with her purse and an empty LCBO bag;
- That the applicant although alert with eyes open did not respond in any manner to questions by Mr. Mason and did not move or react when Mr. Mason reached over her to put the vehicle in park and take the keys from the ignition;
- That a strong smell of alcohol emanating from the applicant could be detected when the applicant was in the ambulance;
- That the applicant was unsteady on her feet and was helped from the vehicle by paramedics.
[50] The applicant submits that the investigating officer should have given the applicant a road side screening test to solidify his grounds and that the presence of alcohol is at best only evidence of consumption; the grounds for the arrest and ensuing breath demand can only arise where there is evidence that the applicant's care and control of the motor vehicle was impaired by alcohol.
[51] It is submitted that the applicant's language barrier and potential medical issue accounts for the applicant's lack of response to the paramedics at the scene.
[52] A conviction for impaired driving (and therefore reasonable and probable grounds for an arrest) can be founded upon evidence not exclusively pointing to impairment by alcohol. The fact that an alternative explanation may exist for an observed indicia of impairment does not mean that reasonable and probable grounds cannot exist. R. v. Moreno-Baches, 2007 ONCA 258; R. v. Storrey; R. v. Bush, 2010 ONCA 554.
[53] Ultimately, there is no evidence that there was anything medically wrong with the applicant. Even if that were not the case it is reasonable to infer that had the applicant had her wits about her she would have tried to articulate her need for an interpreter to the paramedics when they were dealing with her initially and would have responded to their physical act of rendering her vehicle safe, despite the language barrier. Certainly soon after the applicant was removed from her vehicle, there is unchallenged evidence that the applicant was vocal and made attempts to communicate with Officer Mackey even absent the assistance of the Russian interpreter.
[54] I am satisfied that there were objectively reasonable grounds to believe that applicant's care and control of the motor vehicle was impaired by alcohol. The grounds for making the demand I find were objectively compelling and reasonable even absent field/roadside sobriety tests. R v Censoni 2001 OJ No. 5189; R v Pettipas [2009] O.J. No. 4396; R v Sacca [2015] O.J. No. 6259.
Timing and Validity of the Breath Demand
[55] In R. v. Vanderbruggen, the Court of Appeal held that the 'as soon as practicable' pre-condition does not require the demand to have been made immediately, only that the officer has acted reasonably in incurring any periods of the delay. At paragraph 13 the Court held:
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence in taking the first test. The "as soon as practicable" requirement must be applied with reason.
[56] The applicant was in police custody as of 11:25 am. The initial delay in reading the applicant the breath demand arose from the language issue. Officer Mackey testified that he attempted to read the applicant her rights to counsel, caution and breath demand while in the rear of the ambulance at 11:25 am.
[57] However, due to the applicant's language issues which became apparent when the applicant was in the ambulance with Officer Mackey, Officer Mackey was unable to communicate to the applicant that she was under arrest, or advise her of her rights to counsel, caution, and make a breath demand.
[58] Officer Mackey testified that as soon as he realized that this was the situation he contacted the division so that an interpreter would attend the hospital. Officer Mackey testified that he did so knowing that there was a Russian speaking officer working. The ambulance arrived at the hospital at 11:49 am and the Russian speaking officer at 11:55 pm. The applicant's right to counsel and caution were given and the breath demand made sometime between the time Officer Lobanegs arrived and 12:08 pm.
[59] The evidence of Officer Mackey and that of Officer Lobanegs is inconsistent regarding the time the breath demand was made.
[60] Officer Mackey testified that upon Officer Lobaneg's arrival at the hospital among other things he requested that Officer Lobanegs read the applicant the breath demand. Officer Lobanegs testified that Officer Mackey did not mention the breath demand.
[61] I accept Officer Lobaneg's evidence as credible and reliable on this point.
[62] Firstly, Officer Mackey had no notes that he made this specific request. Further, Officer McConnell testified that when he arrived at the hospital at 12:05 pm he was advised by Officer Mackey that the applicant had been given rights to counsel and cautioned by Officer Lobanegs and that Officer Lobanegs was going to read her the approved Instrument Demand, consistent with the evidence of Officer Lobanegs that the demand had not been read to her as yet.
[63] I find that the credible, consistent and reliable evidence is that the breath demand was read to the applicant for the first time at 12:08 pm. I find therefore a further delay of 13 minutes from the time an interpreter was available to assist the applicant until the breath demand was made.
[64] I see no difficulty with the delay in the demand at this juncture. I find that Officer Mackey had moved with reasonable dispatch in arranging for the interpreter and breath technician at the hospital and that Officer Lobanegs arrived at the hospital and was available to assist the applicant within a reasonable time.
[65] The delay making the demand did not result in a delay in obtaining the applicant's breath samples or in and of itself extend the applicant's time in detention. The Intoxilyzer machine had not been set up and was not ready to receive the applicant until 12:44 pm, still within two hours from the time of the offense. In addition the applicant had yet to exercise her right to counsel and was still in the care of hospital.
[66] In the circumstances I find that the delay in making the breath demand did not violate the applicants section 8 Charter right. R v Boily 2015 O.J. No. 3810; R v. West 2014 O.J. No. 5187.
Validity of the Demand
[67] There is a critical contradiction between the evidence of Officer Mackey and that of Officer Lobanegs regarding what, if anything, Officer Mackey communicated to Officer Lobanegs, regarding the grounds for the arrest before the breath demand was made.
[68] Officer Mackey testified that upon Officer Lobanegs' arrival at the hospital he advised Officer Lobanegs of the nature of the charge and the grounds for arrest. When Officer Mackey was asked during his examination in chief if Officer Lobanegs accepted his grounds Officer Mackey responded: "Absolutely."
[69] Officer Lobanegs had a completely different recall. Officer Lobanegs testified that he was not told of the reasons for the arrest or the nature and time of the occurrence. Officer Lobanegs testified that he was simply directed by Officer Mackey to read the applicant her rights to counsel and caution in Russian, with no mention of reading the breath demand when he initially arrived on scene.
[70] At 12:08 pm when Officer Lobanegs read the demand he testified that he had not received the grounds for making the demand.
[71] Officer Lobanegs delivered his evidence in a consistent fashion. Many areas of Officer Lobanegs testimony are externally consistent with other evidence. On the other hand, Officer Mackey had no specific notes in relation to communicating his grounds.
[72] I am satisfied that Officer Lobanegs had not received the information necessary to form his reasonable grounds to make the demand. Nor was this a situation where Officer Lobanegs interpreted a demand read by an officer with reasonable grounds.
[73] Nor did Officer McConnell make any inquiry regarding the grounds for making a demand and read the applicant a breath demand before obtaining samples from her. The time of the arrest, the time of the offense and circumstances of the offense were never communicated to Officer Lobanegs or Officer McConnell nor did they make those inquiries of Officer Mackey.
[74] As such I find that no valid demand was made of the applicant before the breath samples were taken from her and there is therefore a violation of the applicant's section 8 and 9 Charter rights. R v Gundy 2008 ONCA 284; R v Charrete 2009 ONCA 310.
Section 10(a) and 10(b) (Informational and Implementation Component)
[75] The applicant has not established a violation of her section 10(a) and 10(b) Charter rights. The applicant was given her rights to counsel upon Officer Lobaneg's arrival at the hospital, a delay I have found to be reasonable given the need for a Russian interpreter.
[76] The applicant was afforded a reasonable opportunity to speak with counsel at the hospital and a Russian interpreter was supplied by that counsel for that private consultation.
[77] Arrangements were made for the applicant to speak to counsel in a private room before breath samples were taken. This evidence is unchallenged.
[78] The applicant in her evidence on this voir dire makes no complaint regarding the nature and quality of the advice she received and raises no concerns about the privacy afforded to her during her exercise of this right.
Search and Seizure
[79] Before entering the booking hall, while performing computer checks in his vehicle Officer Lobanegs located a "hit" from a York Region police occurrence which referenced the applicant's name and a report of an attempted suicide approximately 9 years prior. The "hit" provided no further details such as if the applicant was a reportee or a witness.
[80] Officer Lobanegs brought this information to the attention of the booking sergeant. Towards the end of the booking process the applicant became emotionally distraught. (Exhibit 6 - Booking Video).
[81] The decision was made by the staff sergeant to authorize a level 2 pat down search of the applicant. A female officer, Officer Ponzi, was called in to conduct this search.
[82] The applicant was taken to the empty bullpen area of the cells which was monitored by video cameras and entered the pen with Officer Ponzi. Officer Lobanegs remained outside the room with the door slightly ajar translating for the applicant. Officer Lobanegs testified that he could not see into the room and that a window on the door to the room was covered.
[83] Officer Ponzi testified that Officer Lobanegs advised her of the possibility of mental health issues associated to the applicant prior to the commencement of the search but provided no further details. Officer Ponzi testified that the applicant was continually talking.
[84] Officer Ponzi testified that she decided in light of this information to seize the applicant's bra or at least the underwire of the bra. Officer Ponzi, who had no notes of the interaction, recalled that she gave the applicant the option of having the police cut out the under wire from her bra and allowing her to keep her bra on while in custody for her comfort, or requiring that she remove it completely and turn it over to the police while she remained in custody.
[85] Officer Ponzi testified that the applicant opted to turn over the bra and in doing so the applicant removed the bra herself turning away from her to do this. Officer Ponzi testified that at no time did she see any of the applicant's private parts.
[86] The applicant agreed in her evidence that she removed the bra herself but refutes the rest of Officer Ponzi's account. The applicant testified that she was not given any options other than removing the bra and that she was nude from the waist up and facing Officer Ponzi when she turned over the bra.
[87] I do not accept the applicant's account as a reliable. The applicant did not testify in a forthright spontaneous fashion and appeared to have gaps in her recall of the events. For example, the applicant mentioned for the first time in cross examination that she was wearing an undershirt in addition to the bra. No details were offered by the applicant in her evidence as to how she removed her clothing including her undershirt and bra such that she ended up partially nude facing Officer Ponzi.
[88] Officer Ponzi testified that her experience with the applicant was unusual and that she conducted very few 'strip' searches. She testified to a total of three in the three years leading up to the date of her testimony. Officer Ponzi's evidence was delivered in a consistent forthright manner.
[89] The search and circumstances of the applicant were somewhat unusual for Officer Ponzi and I accept that Officer Ponzi had a reliable recall of the events.
[90] A general policy to automatically search females wearing underwire bras for safety reasons amounts to an unreasonable form of strip search in the case of a woman arrested for impaired driving. R v Lee [2013] O.J. No.637 (S.C.J.).
[91] Officer Ponzi testified that her safety concern was that the underwire could be used as a weapon or means for the applicant to harm herself or others.
[92] Further Officer Ponzi testified that this was something she had learned in her police training.
[93] However, Officer Ponzi testified that she was unaware of any policy regarding seizing bras or any specific incident where underwire was used for the purposes which she stated as the basis for her concern. She testified that the reason for the search and seizure of the applicant's bra was because of the mental health issues which she had been alerted to as a possibility in relation to the applicant.
[94] Officer Mackey also testified that he was unaware of any standard policy calling for the removal of bras from detainees in custody at the division.
[95] Admittedly the information that Officer Ponzi and the other officers had in relation to the applicant's possible mental health issues was extremely thin. Further it appears based on the evidence called during this Charter voir dire to have had no merit whatsoever and that the applicant had no connection to the reported suicide other than possibly being in the same residence as an associated person.
[96] That being said I accept that ultimately that Officer Ponzi's had a good faith basis to believe that there was a possibility for concern regarding the applicant's mental health.
[97] I find therefore that unlike the case in Lee supra, the decision to search the applicant arose from the individual circumstances of the applicant's case and that the applicant has not established in this case that the search arose from a standard routine policy.
[98] Further, I accept that the search was conducted in as minimally intrusive a manner as possible. Although the bullpen is monitored from the booking area, unlike the circumstances in Mok 2012 ONCJ 291, there is no evidence before me that the search of the applicant was in fact live monitored or viewed by anyone else in the station other than Officer Ponzi. Nor is there evidence that the search was recorded.
[99] Nor do I accept the applicant's evidence as reliable that she was naked from the waist up facing Officer Ponzi when the bra was seized. I find that Officer Ponzi treated the applicant with courtesy and respect in conducting this search.
[100] I therefore do not find a discrete breach of the applicant's section 7 Charter rights.
Overholding
[101] The detention of the applicant to procure samples of her breath invalidly taken is a breach of the applicant's section 9 Charter rights.
[102] A further issue arises in this case with the decision to take the applicant to the division after the breath samples were obtained and after she was medically cleared by the hospital at 1:22 pm.
[103] In the usual course police have the authority to hold individuals charged with impaired driving until they are considered sober and safe to be released:
Alcohol is notorious for adversely affecting judgment and bringing out irrational and irresponsible behaviour in individuals. The officer in charge could have no assurance that the defendant would submit to the control of someone else (who incidentally, would have no legal authority over him) or that he would not became a danger to himself or others. The officer was entitled to take into account this potential and his own and the force's liability. R v Coulter 2000 O.J. No. 3452; R v. Sapusak [1998] O.J. No. 4148; R v Iseler; R v Carrion- Muniz [2011] O.J. No. 4030.
[104] Had the safety of the applicant and the public been advanced by the officers as the reason for taking the applicant to the station the circumstances of this case might fall in line with the authorities cited above given that the readings in this case were three times the legal limit and that, as Officer Lobanegs testified that the applicant was exhibiting some extremes in terms of mood and behaviour, and other indicia of impairment while at the hospital.
[105] However, both Officers Mackey and Lobanegs agreed in their testimony that had there been a responsible person available they would have been content to release the applicant to that person from the hospital.
[106] Officer Mackey testified that it would have been his preference not to take the applicant to the police station but there was no one available to pick the applicant up which is why he took her to the division. Officer Mackey testified that he had a conversation with Officer Lobanegs regarding a responsible person when they were at the hospital and was advised that there was no one available.
[107] Officer Lobanegs testified that he too would have released the applicant from the hospital to a responsible person but that Officer Mackey did not mention it and no conversation took place with Officer Mackey at the hospital in relation to the availability of someone coming to pick up the applicant.
[108] During the booking process Officer Lobanegs can be overheard speaking quietly with Officer Mackey. Although his words are indistinct the context of the conversation appears to concern consideration of the applicant's possible release. Officer Mackey in response to Officer Lobanegs, in what seems to be an utterance inconsistent with his testimony at trial states: "I think she's got to stay".
[109] Officer Lobanegs then states that the applicant is "not before the court". Officer Mackey responds: "No; 240 (referring to the applicant's blood alcohol readings); she's got to be a little more sober." (Exhibit 6 – 1:57 pm).
[110] The tenor of this discussion I find is consistent with Officer Lobaneg's evidence that he would have released the applicant to a responsible person but he had not been asked to locate one by Officer Mackey at the hospital.
[111] In addition, consistent with Officer Lobaneg's account, the applicant testified that she was never asked by the officers about an available responsible person who could pick her up when she was at the hospital.
[112] I accept Officer Lobanegs' evidence as the credible and reliable account of these events.
[113] Despite it appears there being no safety or public interest concerns on the part of the police regarding the applicant's release and that the police investigation had concluded at the hospital, no efforts were made by the officers, to locate someone who could pick the applicant up when she was medically cleared at 1:22 pm.
[114] Instead, the applicant was taken to the division, booked into the station, effectively strip searched given the removal and seizure of her bra at the division, and held a further 4 and 1/2 hours in custody before finally being released. All of this apparently unnecessarily so if I am to accept the evidence of officers Mackey and Lobanegs regarding their willingness to have released the applicant from the hospital had a responsible person been available.
[115] The applicant's long-time friend Lyudmyla Ivanchuk testified that she received a phone call from a female Russian speaking police officer at 1:55 pm advising her that the applicant was at the division. This evidence is unchallenged and forthright. The timing of this call is consistent with no attempt being made to contact a responsible person for the applicant from the hospital.
[116] I accept Ms. Ivanchuk's evidence that she would have been available to pick up the applicant had she been contacted earlier at the hospital. The applicant has established that a responsible person would have been available to perform this function.
[117] I find that the applicant was arbitrarily detained not only when the breath samples were taken from her at the hospital but further when she was taken to the division and held for 4 hours and 33 minutes.
Findings
[118] I therefore find a violation of the applicant's section 8 and 9 Charter rights. I find no discrete violation of the applicant's section 7 Charter rights however the circumstances of the applicant's arbitrary detention are certainly relevant factors in considering any appropriate remedies.
Remedies
Should the Defendant's Breath Sample and Intoxilyzer Readings be Excluded Pursuant to Section 24(2) of the Charter?
[119] Having found violations of the applicant's section 8 and 9 Charter rights I must now consider whether the admission of the evidence obtained as a result of these violations would bring the administration of justice into disrepute. Specifically, I must consider: the effect of the admission of the evidence on trial fairness, the seriousness of the violation, and the effect of exclusion of the evidence on the administration of justice. R v Grant (2006).
[120] In respect of trial fairness I find that the impact on the defendant is significant; the invalidity of the demand goes to the essential elements of the offense of Care and Control Over 80 mg; it is a crucial omission which has led to the police improperly obtaining the applicant's breath samples.
[121] In respect of the seriousness of the breach there is no evidence of malefides on the part of Officer Mackey; early on in the investigation Officer Mackey had turned his mind to aspects of the applicant's constitutional rights by seeking to secure a breath technician promptly. There is no evidence of any misconduct by the officers and I find that they treated the applicant professionally and with courtesy.
[122] The violation resulted from a breakdown or lack of communication between the officers at the hospital regarding the making of a valid breath demand. This certainly could have been and should have been avoided had the officers exercised a reasonable amount of diligence in this respect. There were three officers present who, had they individually been mindful of the applicant's Charter rights could have operated in a safety net capacity to insure the applicant's section 8 Charter rights were properly upheld.
[123] No one made the usual inquiry about reasonable grounds including the breath technician who in the usual course should ensure a valid demand has been made before samples are taken.
[124] I find in light of the nature of this breach and its impact on trial fairness that the breath samples, readings and any other evidence collected from the applicant following the time of the breach at 12:08 pm should be excluded.
Is a Stay of Proceedings Warranted Given the Violations of the Applicant's Charter Rights
[125] A stay of proceedings as a remedy to Charter violations is a remedy of last resort and should only be granted in the clearest of cases. It is designed to prevent perpetuation of a wrong that if left alone will continue to trouble the parties and the community as a whole. R v. Regan 2002 SCC 12.
[126] In respect of the section 9 breach the additional unnecessary intrusion into the applicant's privacy had some impact on the applicant given her posture in the booking video, self-consciously covering her chest, and her concern about immediately putting her bra back on once it was returned to her.
[127] On the other hand the applicant's viva voce testimony regarding the extent of the impact on her was constrained and lacked forthrightness.
[128] In addition, I have found the police action in relation to this aspect of the search to have been lawful.
[129] Further even though it is clear from the evidence that the applicant's attendance at the division was unnecessary it was not manifestly unreasonable for the applicant to have been further detained given her exceptionally high readings.
[130] The 4 and ½ hours the applicant was held at the division though uncomfortable and unpleasant for the applicant cannot be characterized as an unduly lengthy time in custody. See the following cases on the issue of over holding: R. v Pasparon [2015] O.J. No.6796 (13 hours); R. v Systma 2015 ONCJ 462 (7 hours); R v Iseler (11 hours); R. v. Price 2010 ONSC 1898 (6 and 1/2 hours).
[131] In none of the cases cited above did the appellate or respective trial courts find that the duration of over holding was significant enough to warrant a stay of proceedings.
[132] In light of these authorities and the circumstances of this case I find that the over holding in this case resulted in a relatively minor breach of the applicant's section 9 rights.
[133] The applicant's unlawful detention at the hospital after 12:08 pm has been addressed by the exclusion of the breath samples taken and any observations made by the police or other evidence obtained after that time. The impact of the section 9 breach at this juncture is minimized as the applicant had not been medically cleared to leave the hospital until 1:22 pm. The further section 9 over holding breach occurred after the investigation was completed and no further evidence was obtained.
[134] The applicant has not established that a stay of the proceedings is merited in this case. I do not find that this is the clearest of cases and I decline to impose that remedy in light of the nature of the breaches and alternative remedy imposed.
Reasons Released: January 22, 2016
Signed: Justice Sandra Bacchus
Footnote
[1] Officers Mackey and Lobanegs were not asked about this exchange at trial. The most I am prepared to find in light of the lack of examination and cross-examination in relation to this conversation is that Officer Mackey's comments during the booking process appear to be inconsistent with his evidence at trial.