R. v. Azarnush

Ontario Court of Justice Old City Hall - Toronto

Released: June 16, 2016

Court Information

Between: Her Majesty the Queen

And: Vazheh Azarnush

Before: Melvyn Green, J.

Counsel:

• J. McNabb, for the Crown
• J. Stilman, for the Defendant

Heard: April 21 and 22, 2016

Reasons for Judgement

A. Introduction

[1] Sgt. Paul Strangways is a long-serving member of the traffic enforcement unit of the Toronto Police Service (TPS). His job affords him many "teachable moment" opportunities. Vazheh Azarnush, the defendant, was one of his students.

[2] Strangways pulled over a speeding Mercedes on the Gardiner Expressway in Toronto at about 2am on April 2, 2015. He detected an odour of alcohol in the vehicle. The defendant was sitting behind the wheel. There were three other occupants. Strangways directed the defendant to the officer's cruiser and then into its rear seat. The back doors were closed and locked. Strangways interrogated and admonished the defendant for the next fifteen minutes, ultimately writing a Provincial Offences Act (POA) ticket for "careless driving".

[3] Once having left the Mercedes, Strangways did not associate an odour of alcohol with the defendant until he opened the cruiser door to hand him the POA ticket and release him. A roadside screening demand followed and, upon registry of a "Fail", an arrest for driving "over 80", an approved instrument demand and, ultimately, the generation of legally excessive blood alcohol concentration (BAC) readings. In the result, the defendant was arraigned before me on a single charge of operating a motor vehicle with an excessive BAC.

[4] The defendant advances several Charter and statute-grounded objections to his prosecution. Only one is of sufficient merit to warrant close analysis: that Strangways' detention of the defendant in the rear of the police cruiser, and the manner of that confinement, amounted to an arbitrary detention, in breach of s. 9 of the Charter, and that the inculpatory BAC reading should be excluded, pursuant to s. 24(2) of the Charter, as ultimately derivative of the breach.

[5] The Charter motion and trial proceeded by way of a blended proceeding. The only testimonial evidence was that proffered through Sgt. Strangways, as supplemented by audio and video recordings of the officer's brief pursuit of the Mercedes and his exchanges with the defendant at the driver's door of his car and while he sat in the back of the police cruiser. The burden in regard to the Charter claims rests on the defendant on a balance of probabilities. That respecting the merits of the prosecution rest, as always, on the Crown on the venerable standard of proof beyond reasonable doubt.

[6] As developed in following reasons, I am of the view that several of the defendant's Charter-protected rights were infringed by the officer. The just and appropriate remedy is an order excluding the Certificate recording the defendant's excessive BAC readings. In the result, the defendant is found not guilty of the single offence on which he was arraigned.

B. Evidence

[7] Strangways had worked exclusively in traffic services for many years, including 23½ of his 27 with the TPS. He had investigated over a thousand drinking-and-driving incidents in the course of his career, including service as a qualified breath technician. Strangways has a "strong work ethic". His pride in his job extends beyond the demands of his law enforcement duties. He acknowledged taking the opportunity to "educate" or "admonish" miscreants, as he readily conceded he had on the night at issue and on other occasions as well.

[8] Strangways was stopped in his marked cruiser on the shoulder of the eastbound Gardiner Expressway in Toronto in the early hours of April 21, 2015. The weather was clear and cool. Construction had reduced the number of eastbound lanes and the ordinary speed limit of 90 kph had been temporarily reduced to 70 kph, as signage indicated. Traffic was extremely light at this hour.

[9] Strangways was in radio communication with officers on the other side of the highway who were investigating a fatality that had occurred sometime earlier. At about 1:56 am, an eastbound vehicle passed Strangways at what appeared to be an excessive rate of speed. The officer immediately pursued the vehicle. The speeding car made an abrupt right turn onto the Spadina exit ramp, cutting close to a bullnose barrier and, in Strangways' estimation, risking the safety of another vehicle. The officer took the same exit, activating his lights and sirens. The pursued vehicle, the defendant's Mercedes, promptly pulled over to the right side of the ramp. The officer pulled in behind. For Strangways, the disconcerting manner of the defendant's driving immediately "crystallized" as the offence of careless driving. The entire pursuit lasted less than a minute.

[10] Strangways approached the driver's door of the Mercedes on foot at 1:57am. There were four occupants: the defendant was behind the wheel, a woman sat to his right, and a similar configuration of man and woman occupied the back seat. But for the rear passenger window, all the windows and the sun roof were open. Strangways detected an odour of alcohol but he could not determine its source. He agreed that the Mercedes' lowered windows and retracted sunroof were consistent with an effort to vent the odour of alcohol. He suspected the presence of alcohol in the driver's body, but he felt he did not have a legally adequate foundation for such suspicion as he could not localize the odour and there were four persons in the vehicle.

[11] The officer asked the defendant for his documentation at 1:58am and, seconds later, forcefully directed him to "bring [the documents] with you" and to "come back to my car with me". The defendant accompanied the officer to the cruiser. Strangways then directed the defendant into the back seat, told him to move over, advised the defendant that his conduct was being recorded, and closed the cruiser door behind him. He did not pat down or otherwise conduct a security assessment of the defendant before placing him in the cruiser. Asked, cordially, how he was doing, Strangways replied, "I would be doing a lot better if you weren't driving like a fool, sir".

[12] The back doors to the cruiser were locked. Only Strangways had the capacity to unlock them. An impenetrable plexiglass screen stretching from the top of the front seat to the cruiser's ceiling completed the defendant's physical confinement.

[13] Strangways had already decided he was going to lay some type of charge against the defendant by the time he ordered him out of his vehicle. "Careless driving" was his immediate option. "Dangerous driving" was an alternative possibility, as was, he allowed in cross-examination, impaired driving. The exact charge, the officer said, depended on his subsequent investigation. The defendant was not "under arrest" when directed to the officer's cruiser or during the first fifteen minutes he occupied its backseat. This, Strangways explained, was because he had not yet decided which, if any, charge to lay. Strangways agreed that the defendant was "detained" during this period. Strangways also agreed that any reasonable person would have complied with his police command to leave his own car and attend at the officer's cruiser.

[14] The officer provided two explanations for placing the defendant in the rear of his cruiser. First, he testified that he wished to isolate the defendant from the passengers in the Mercedes to see if he could discern a driver-specific odour of alcohol. In the course of his examination, Strangways agreed that he monitored the defendant as he walked to the cruiser and as he opened the door and placed him in the backseat. He did not detect an odour of alcohol. Strangways also agreed that he did not record anything in his notebook about separating the defendant from his passengers to determine whether he was the source of the suspect odour of alcohol. Further, during the approximately fifteen minutes of recorded interrogation in the cruiser before he first opened the rear door to release the defendant, Strangways at no time mentioned having detected an odour of alcohol in the Mercedes. Nor did he ask the defendant any questions pertaining to his use or consumption of alcohol. Indeed, up to the point when he was about to release the defendant from the cruiser, Strangways never asked him:

• if he had been drinking;
• to exhale in his direction; or
• to conduct any other exercises that might assist in determining whether the defendant had consumed alcohol that evening.

Again, Strangways agreed that he never detected any odour of alcohol emanate from the defendant until he opened the back door to release him with a careless driving ticket. Finally, Strangways agreed that he would never have detected any odour of alcohol had he not confined the defendant in the cruiser for the previous quarter-hour.

[15] Strangways' second rationale for placing the defendant in his cruiser was that he did not want to embarrass him. In cross-examination, the officer explained that he planned to admonish the defendant for his driving misconduct at the point he directed him to the police cruiser. By removing the defendant from the Mercedes, Strangways intended, he said, to spare him the embarrassment he would otherwise experience if the admonishment were delivered while the defendant remained in the company of his companions. The officer expressly advanced the second, and only the second, rationale for the defendant's confinement during the course of the recorded exchange in the police cruiser. In re-examination, Strangways testified that he did not "always" confine errant drivers in the back seat of his cruiser for purposes of admonishment. He also allowed that the only risk of embarrassment he contemplated was that created by his intention to berate the defendant for his poor driving.

[16] Strangways testified that placing the defendant in the car was "safer" than admonishing him by the side of the road. No evidence was tendered as to whether there was any other traffic on the ramp at that hour. Nor was any explanation proffered as to why the officer's interrogation could not have occurred in the space (wide enough for pedestrian traffic) between his cruiser and the inner guardrail. Nor was there any explanation as to why at least the rear passenger-side door was not left open during the officer's interrogation of the defendant. Strangways did not express any concerns as to the defendant representing a flight or security risk before he was first placed in the cruiser. Indeed, the defendant was polite and co-operative throughout.

[17] Once in the cruiser, Strangways began his questioning of the defendant at 1:59am. A transcript of their opening exchange (with Strangways initialized as "PO", for peace officer, and the defendant as "D") follows:

PO: Maybe you could explain your need for speed as you came past me on the eastbound Gardiner there, sir.

D: Oh … I was just trying to pass, uh, ... someone on the right lane and ... he's like … not letting me pass. I was trying to go forward and pass him over [inaudible – police radio interference]. I really apologize … I follow the rules.

PO: You want to try that one again, sir? 'Cause you saw where I was. Did you hit your brakes when you passed me? You know that's why you did the sudden and abrupt lane change to take the Spadina off ramp.

D: No, I may have totally been thinking… [inaudible]. My girlfriend at the time just told me that we were supposed to get off at Spadina. I made a mistake… [inaudible]

PO: What's the speed limit up on the Gardiner?

D: It's 100, sir.

PO: You want to try that one again?

D: 90.

PO: Yeah. And what is it through the construction zone there you were just coming out of?

D: Even less. You're right. I'm totally sorry.

PO: So why am I behind you at 120 as you're flying past everybody?

D: It's because I'm a total idiot.

PO: That goes without reason sir. I mean and now you're sitting here. The reason I brought you back here is that I don't embarrass you in front of the two ladies.

D: You're right. I'm so sorry, sir. I'm gonna be … I totally am.

PO: Anything I need to know about your driver's licence before I get into it?

D: No, no I'm good. I'm usually a good driver I don't usually [radio interference] I'm totally sorry, sir. I'm a total fool. I made a mistake.

[Pause]

D: I guess maybe like… after like I talk to my girlfriend because I didn't want to like, miss the, miss the exit. And…

PO: Well you were going so fast and if you'd been doing the speed limit you wouldn't have missed the exit.

D: You're right, sir. I'm a total moron.

PO: As a matter of fact, I'm gonna turn the camera off right now and then I'm gonna turn it back on so that I can review what I got on my camera from you going, okay?

D: You're right.

[18] Strangways momentarily turned off the recording mechanism so he could activate the playback system in the cruiser. He then resumed recording while conducting an annotated screening of preserved video of his brief pursuit of the Mercedes.

PO: Here I am parked on the shoulder. Here's one car in the middle lane. Here's another car in the right lane. I'm starting to accelerate. And there you go. And there your brake lights come on. So you're not even attempting to pass him. You're just flying. I'm trying to catch up with you. You now pass him. You go across the bullnose. Almost hit the barricade to get off.

[Radio noises]

PO: So, your original statement that you got in here, that you were trying to pass the guy that wouldn't let you go – I'm sorry but I'm calling you a liar on that one. I'm calling you a liar on that one, sir, and I'm saying that on record. All right?

D: … It wasn't that person before I was talking about [but] the person before that, like...

PO: Well there were two cars that had quite some distance pass me before you even came flying by. There was nobody around you. All right? So there's really no excuse for your driving, driving off the roadway, cutting off another car.

[19] Strangways checked a police database through his on-board computer. He then resumed his exchange with the defendant:

D: I'm really sorry about all that. Uh –

PO: There's no doubt… There's no doubt with you sitting in the back of my car right now that you are.

D: [Inaudible]… honestly I never intended to [inaudible].

PO: Well, just with your speed alone, cutting off the car and driving off the roadway, I believe…I believe I have enough to give you a criminal charge for dangerous.

[Radio sounds]

D: I mean, let me just explain why … usually not a dangerous driving case.

PO: Well you certainly didn't demonstrate it today and I'm gonna give you your opportunity to explain it to a Justice of the Peace.

D: No, you're right. All right then … I don't wanna be treated any differently than anybody else. I, uh, … I understand… I'm disappointed in my…

PO: Well, you have to understand, you have to understand one other thing, sir. You saw all the fire trucks and everything on, on your left side as you came flying through that construction zone?

D: Yeah.

PO: That's a traffic fatality. Somebody's dead right there that you go flying by. Driving in a similar manner as you were.

D: ... That's horrible [inaudible].

PO: Well, I'm gonna issue you a ticket for careless driving. And we can, uh, take it up with the Justice of the Peace. And I'll explain to you your options okay?

D: Will it really affect my record? Because I really wanted to become a police officer and –

PO: Well with your record and that uh, previous impaired driving charge from 2005 …

D: I really was hoping that wouldn't haunt me, I was really –

PO: Well until you get a, uh, ... stay on that …

D: Is there anything I can …

PO: You still living in Sudbury?

D: Yes.

PO: Well I can guarantee you that the, uh, … Sudbury PD wouldn't put up with that.

D: No, really? ... They told me like …

[Radio interference]

PO: Are the ladies from Sudbury as well?

D: No, they're not.

PO: So you just met them here?

D: Yeah. My friend… my friend she's from, uh, … [inaudible] We, uh, ... we just wanted a good time… [Inaudible]

PO: Well that's not how you show them a good time.

D: You know, that wasn't my intention…

PO: Well unfortunately, sir, I think it was. I think you just got caught short with the policemen being right there.

D: … not really my intention…

PO: You wanna show the ladies a good time, you show them a good time. You don't put their lives in jeopardy.

[20] A brief neutral discussion followed. Strangways then instructed the defendant as to his procedural options upon receipt of the POA ticket. When the defendant tried to explain that he "wasn't trying to drive fast", the officer responded by saying, "Then you should have been driving at the speed limit, sir, and paying attention, not driving at Mach 12". As exemplified by this comment, the officer's tone during his exchange with the defendant was frequently sarcastic and otherwise degrading. The defendant's videotaped responses make clear his sense of shame and intimidation.

[21] Strangways opened the rear door to release the defendant at 2:13am. As he emerged from the back seat, Strangways immediately, and for the first time, directly associated an odour of alcohol with the defendant. "How much alcohol have you had?" "Like one drink", replied the defendant. Strangways ordered the defendant back into the cruiser.

[22] Strangways did not have an approved screening device (ASD) in his vehicle. Through dispatch, he promptly located one with an officer parked on the other side of the ramp. Strangways left his vehicle for a minute to retrieve the ASD, advising the defendant of his intention and that he was "gonna give [him] a demand … and then give [him] a test" on his return. At 2:17am, Strangways formally read the ASD demand to the defendant. Three tests followed, all conducted while the defendant remained in the back of the cruiser. The defendant recorded a "Fail" on each test, the last concluding at 2:24am. Strangways was "shocked" that the defendant had registered a "Fail", but the ASD results satisfied him to the requisite statutory standard that the defendant was driving with an excessive BAC. An arrest for this offence followed, as did recitals of the defendant's rights to counsel, the primary and secondary cautions, and the approved instrument demand. The defendant wished to speak to counsel but agreed to wait until they reached the station. Back-up officers arrived just after the approved instrument demand was read.

[23] Strangways spent the next 15 or so minutes inputting occurrence information into a police database using software with which he was not yet fluent. He left for the station with the defendant at 2:45 am, arriving nine minutes later. Strangways facilitated the defendant's telephone contact with his lawyer at the station and escorted him into the breath room by 3:33 am. Two suitable breath samples followed, with readings of 100 and 90 milligrams of alcohol in 100 millilitres of blood, respectively. The "legal limit" is 80 milligrams of alcohol in 100 millilitres of blood.

[24] Ultimately, Strangways never issued the careless driving ticket.

C. Analysis

(a) Introduction

[25] Defence counsel advances three complaints each of which, it is alleged, impacts on the admissibility of the BAC readings crucial to the prosecution's case.

[26] The first questions the legality of the ASD demand by virtue of an alleged failure to comply with the "forthwith" requirement in s. 254(2) of the Code. This complaint miscarries in light of my finding that Strangways did not form "reasonable grounds to suspect" that the defendant had "alcohol or a drug in [his] body" until opening the cruiser's rear door and then detecting an odour of alcohol as the defendant emerged from the back seat. The officer promptly signaled his intention to make the demand and formally advanced it upon retrieving the device and within a couple of minutes of first forming a reasonable suspicion – that is, without unreasonable or unnecessary delay in all the circumstances: R. v. Quansah (2012), 2012 ONCA 123, 286 C.C.C. (3d) 307 (Ont. C.A.). (See also, R. v. MacMillan, (2013) 2013 ONCA 109, 114 O.R. (3d) 506 (C.A.).)

[27] The second articulated concern is that the Certificate proving the defendant's BAC is inadmissible as the s. 258(1) "as soon as practicable" precondition to its receipt is not satisfied in this case. This too fails as, in my view, the officer's conduct of the investigation (including the completion of his on-scene data entry requirements), although not optimally efficient, was reasonable in all the circumstances: R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.). I note that evidence was led suggesting that inputting occurrence-related information while still on scene abbreviates processing delays at the station.

[28] However, the third issue flagged by the defence – bearing, as noted, on the occurrence and manner of the defendant's detention in the rear of Strangways' cruiser and its implications for the defendant's rights under the Charter – commands closer attention.

[29] The defendant's constitutional plea is here grounded in s. 9 of the Charter – "the right not to be arbitrarily detained or imprisoned". Detention, in turn, triggers additional constitutional protections including, pursuant to s. 10 of the Charter, the right "to be informed promptly of the reasons therefor" and "to retain and instruct counsel without delay and to be informed of that right".

[30] No issue is here taken with the proposition that the defendant was detained from the moment he was pulled over by the police: R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Ladouceur, [1990] 1 S.C.R. 1257. Roadside stops for investigation of provincial regulatory offences amount to detention under the Charter: R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Mellenthin, [1992] 3 S.C.R. 615. As is clear from both the evidentiary narrative and Sgt. Strangways' concession, but for the defendant's initial detention in the cruiser there would have been no detectable odour of alcohol attributable to the defendant and thus no lawful basis for the ASD demand made of him or, in turn, the searches and seizures that followed, culminating in the Certificate establishing his legally excessive BAC readings. This domino-like concatenation necessarily invokes additional constitutional concerns, in particular with respect to s. 8 of the Charter – the defendant's right to be secure against unreasonable search and seizure. The foundational consideration, however, is the defendant's s. 9 rights.

[31] As I am satisfied that the defendant's constitutionally-protected rights were here compromised. I am also satisfied that the appropriate remedy is one of exclusion, the matter to which I turn upon detailing the nature of the predicate Charter infringements.

(b) Section 9: The Governing Legal Principles

[32] Although Sgt. Strangways sought to keep his charging options open, he initially pulled over, and thereby detained, the defendant for an apprehended violation of the Highway Traffic Act, R.S.O. 1990, c. H.8 – "crystallized" as careless driving. (See R. v. Therens, supra, at p. 644.) This detention, to the degree that it involved a good faith enforcement of the HTA, was lawful. It was not an investigatory detention under the authority of R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. Strangways had proper grounds to believe and did believe that the defendant had committed the offence of careless driving. Accordingly, a brief detention for related checks and to complete the necessary paperwork was justified.

[33] Having detected an odour of alcohol in the vehicle driven by the defendant, Strangways was also authorized to take such investigative measures – including questioning the driver as to his consumption of alcohol and requesting he perform a roadside physical sobriety test – as might reasonably assist in determining whether there was an objective basis to ground a roadside breath sample demand: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3. Further, the police are not obligated to inform a detainee of his or her s. 10(b) Charter right during these preliminary roadside inquiries into possible criminal offences involving drinking and driving: Orbanski, paras. 52-60.

[34] The police powers in these latter circumstances are not unlimited, nor may they be carried out indiscriminately. Rather, their exercise must be both reasonable and necessary. As said in Orbanski, at para. 45:

The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35 by that which is "necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference".

The Court then endorsed Doherty J.A.'s delineation of the outer boundaries of an officer's authority in such situations, as advanced in R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.), at p. 73:

[A] procedure cannot be reasonable . . . unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee.

[35] Critically, the standard of "reasonable necessity" developed in these authorities governs the constitutional propriety of any state-ordered detention and, as well, the nature or manner of that detention. The Supreme Court's decision in R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, rendered more than two years before Strangways' and the defendant's paths crossed, is here instructive. Mr. Aucoin, the driver in that case, had been stopped by the police for suspected violations of provincial highway traffic legislation, the Nova Scotia Motor Vehicle Act, R.S.N.S. 1989, c. 293. The officer placed Aucoin the rear of his cruiser, conducting a preliminary pat-down search that led to the discovery of some drugs. As in the case before me, Aucoin's "detention for those [MVA] infractions was perfectly lawful", as the initial "basis for his detention was not investigatory, as that term is used in Mann", supra: per Moldaver J., for the majority, at para. 33. "The question that arises", as framed by the Court, at para. 30, "is whether securing [Aucoin] in the cruiser – which … fundamentally altered the nature of his ongoing detention – was reasonably necessary in the totality of the circumstances" (emphasis added).

[36] Returning to this theme, Moldaver J., at paras. 34-35, continued:

The problem in this case … flowed from [the officer's] decision to secure [Aucoin] in the rear of his cruiser while he wrote up the ticket for the motor vehicle infractions. That decision carried with it increased restrictions on the appellant's liberty interests, and … in my view, altered the nature and extent of the appellant's detention in a fairly dramatic way …

To be clear, I do not see this case as turning on whether [the officer] had the authority to detain [Aucoin] in the rear of his police cruiser, having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case. [Emphasis added.]

In essence, the Court here expressly reaffirms that the protection afforded by s. 9 of the Charter extends beyond the question of the arbitrariness of a decision to detain per se to that of the manner of detention. "This approach" to s. 9, as said in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 56, "mirrors the framework developed for assessing unreasonable searches and seizures under s. 8 of the Charter" – including the constitutional obligation that "the search must be carried out in a reasonable manner" (emphasis added). This is not a controversial proposition. As said in R. v. Williams, 2013 ONSC 1399, at para. 115, "it is well settled that, in determining whether a detention is arbitrary, not only must the grounds to detain be considered, but also the manner in which the detention is carried out".

[37] Detention, then, must be viewed as a dynamic rather than static state in which the quality, length and vagaries of the event are subject to constant constitutional scrutiny. An "over-holding", as it is sometimes called, is a relatively common illustration of this principle, as obtains in circumstances where an initially lawful detention may be found to transgress s. 9 due to its unjustified duration: see, for example, R v. Iseler, [2004] O.J. No. 4332 (C.A.); R. v. Price, 2010 ONSC 1898, at paras. 77ff.

(c) Narrowing the Facts and Applying the Law

[38] As noted earlier, Sgt. Strangways advanced two rationales for detaining the defendant in the rear of the cruiser: to determine whether the defendant radiated an odour of alcohol once removed from his car and, second, to spare the defendant embarrassment as he admonished him. I cannot credit the first of these explanations for the defendant's physical confinement in the police cruiser. While alcohol odour detection may well have helped fuel Strangways' decision to direct the defendant to the cruiser, it was a hypothesis he had tested, found wanting and abandoned by the time he opened the cruiser's door and put the defendant in its locked confines.

[39] My conclusion in this regard rests on the following:

• Strangways monitored the defendant for an odour of alcohol as he escorted him to the cruiser and directed him into the rear seat; Strangways did not discern an odour of alcohol once the defendant was removed from his own vehicle;

• Prior to locking the defendant in his cruiser, Strangways did not conduct the most rudimentary of conventional investigations into the defendant's consumption of alcohol. He did not ask the defendant to perform any roadside sobriety tests. Admittedly, this exercise may have been unsafe or at least awkward on the off ramp. However, neither did Strangways ask the defendant to simply blow in his direction. Nor did he adopt the most straightforward, least intrusive and almost universally employed strategy available to police officers in such situations: he did not even ask the defendant whether he had had anything to drink that evening.

• During the first fifteen minutes of recorded exchange in the cruiser, and up until he was about to release the defendant with a POA ticket, Strangways did not once ask the defendant a question pertaining to his alcohol consumption that evening;

• Strangways, as an experienced officer, acknowledged that he endeavoured to record everything of potential significance in his notebook, yet not single entry echoed his testimony that he directed the defendant into the back of the cruiser to better determine whether he exhibited an odour of alcohol;

• Strangways was "shocked" when the defendant registered a "Fail" on the ASD.

This inventory of what Strangways did, and, more telling, did not do, belies his assertion that he locked the defendant in his cruiser to pursue a drinking-and-driving investigation.

[40] Whatever his initial range of charging options and suspicions, conducting a locked-box alcohol detection experiment was not the reason Strangways closed and locked the cruiser door on the defendant. This claim, in my assessment, is an after-the-fact rationalization for Strangways' excessive zeal. His manifest purpose, I find, was to chastise the defendant – a purpose rooted in caprice and the officer's personal and idiosyncratic approach to traffic enforcement rather than any lawful authority with which he was vested. In short, Strangways' grounds for confining the defendant as he did rendered the detention patently arbitrary. As said in R. v. Grant, supra, at para. 54, "...a detention not authorized to by law is arbitrary and violates s. 9." (See also, R. v. Caver, [1988] O.J. No. 1120 (C.A.); leave refd. [1988] S.C.C.A. No. 370.) The officer's treatment of the defendant in the rear seat of the cruiser – the locked doors, the shaming ritual, the failure to afford contingent rights —only compounded the constitutional trespass.

[41] R. v. Aucoin, supra, is here again instructive. In that case the officer's grounds for detaining Aucoin in the rear seat of his police cruiser was his fear that the accused would simply walk off into the congested streets and disappear as the officer completed the necessary documentation. Accepting the good faith of the officer's assertion, the Court nonetheless found that the appellant Aucoin's s. 9 rights had been breached. As said, at paras. 39-40, with respect to his confinement in the rear seat:

[D]etaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which [the officer] could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter.

Without wishing to second-guess the actions of the police and recognizing … that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that [the officer's] actions, though carried out in good faith, were not reasonably necessary. [Emphasis added.]

Then, by way of general proposition, the majority of the Supreme Court, at para. 43, added:

In the context of a straightforward motor vehicle infraction, … it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser. [Emphasis added.]

(The dissenting opinion was even less forgiving of the practice of confining detainees in the back of a police cruiser: see para. 86.)

[42] Short of physical confinement, there were ample "other reasonable means" by which Sgt. Strangways could here have completed his investigation of the defendant's offensive driving behaviour or, to the extent that the consumption of alcohol was a factor, determined whether the defendant driver had alcohol in his body. Strangways ventured none of these less intrusive measures. He instead immediately opted to effectively cage the defendant in the rear of his cruiser. However, the violation of s. 9 is here not merely founded on an officer's failure to employ a minimalist approach to detention. The defendant's physical confinement in the police vehicle was not grounded in any objectively reasonable concerns. Its purpose was capricious and irrelevant to any legally countenanced justification – the very definition of arbitrary.

[43] In Aucoin, the pat-down search to which the accused was subject before being placed in the cruiser was characterized, at fn. 2, as "an aggravating factor". No search here preceded the defendant's entry into the police vehicle. However, once seated in the cruiser Strangways immediately began a vigorous and incriminating interrogation of the defendant respecting his alleged driving misconduct. Even accepting (if only in arguendo) that Strangways was, at that point, not certain which charge he would ultimately lay, he testified that he knew by then that he was going to charge the defendant with a driving-related offence and, further, that the defendant was detained from the moment he pulled him over. Yet Strangways did not, as required by s. 10(b) of the Charter, inform the defendant of his right "to retain and instruct counsel without delay" until he had failed the ASD – some twenty-five minutes after the defendant was first confined to the locked cruiser and long after Strangways had concluded the interrogation.

[44] Strangways' s. 10(b) duties are long settled: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. There is no apparent justification for departing from this constitutional obligation in circumstances where, as here, a drinking-and-driving investigation did not inform the officer's interrogation of the defendant in the cruiser and where no other exigencies obtained. (See R. v. Richards, ONSC 3556, at para. 32.)

[45] Strangways' unlawful detention of the defendant in the rear of his cruiser generated s. 10(b) obligations with which he did not comply. It also produced an amplification of a previously undetectable odour of alcohol associated with the defendant that, but for the s. 9 breach, Strangways would never have discerned. That odour grounded the ASD demand and, in turn, the "Fail", the Breathalyzer demand and the over-80 readings recorded on the challenged Certificate. In Aucoin, an unlawful detention in a police cruiser precipitated a preliminary pat-down search that yielded the discovery of prohibited drugs in the detainee's pocket. As explained by the Supreme Court, at para. 44, the unconstitutional detention rendered the search and seizure violative of Aucoin's s. 8 rights:

[The officer] chose to secure the appellant in the rear of the cruiser and pat him down as a prelude to doing so. But for that decision, there would have been no pat-down search. Because detaining the appellant in the back of the cruiser would have been an unlawful detention … it cannot constitute the requisite basis in law to support a warrantless search. Therefore, the pat-down search was unreasonable within the meaning of s. 8 and constituted a breach of the appellant's Charter right against unreasonable search and seizure. [Citations omitted.]

[46] The language and logic of Aucoin was closely followed by the Court of Appeal in R. v. McGuffie, 2016 ONCA 365. The accused in that case was unlawfully detained in a police vehicle. A subsequent search located a packet of cocaine in the appellant detainee's pocket. After setting out the above-quoted passage, Doherty J.A., at para. 57, determined that, "the detention of the appellant in the back of [the] cruiser was unlawful and on the reasoning in Aucoin cannot provide a basis for the warrantless search of the appellant's person". Similarly, in the matter before me, "but for" the unlawful detention of the defendant there would have been no evidentiary foundation for the search and seizure of his breath samples, both roadside and at the station. As said in McGuffie, supra, at para. 54, "the police cannot, through unlawful conduct, create a circumstance said to justify a safety search of an individual" – or, for that matter, any search that trespasses those privacy interests protected by s. 8 of the Charter. The breach of the defendant's s. 8 rights was, here, clearly derivative of the failure to respect those guaranteed by Charter s. 9.

[47] As was said in R. v. Aucoin, Strangways' decision to place the defendant in his cruiser "fundamentally altered the nature of his ongoing detention". The enhanced detention was an exercise in arbitrary detention that, again quoting Aucoin, "altered the nature and extent of the appellant's detention in a fairly dramatic way". The defendant's detention in the cruiser was simply "not reasonably necessary". Nor was the officer's subsequent treatment of the defendant – the locked doors, the disparaging sarcasm. Whatever purpose the confinement served was not one authorized by the criminal or common law or sanctioned by the Charter. The failure to promptly afford the defendant his s. 10(b) rights, in circumstances where the officer was alive to the defendant's detention and where there was clearly no pursuit of a drinking-and-driving investigation, is also without justification. Like the further breach of the defendant's s. 8 right to be secure against unreasonable search and seizure, it compounded the gravity of the officer's failure to comply with his constitutional obligations.

(d) Section 24(2): The Appropriate and Just Remedy

(i) Introduction

[48] Crown counsel maintains the constitutional propriety of the decision to place the defendant in the cruiser. She concedes that the manner of his subsequent detention – the locked doors, his treatment by the officer once inside the cruiser – breached s. 9 of the Charter. However, she ably resists the suggestion that admission of the Certificate establishing the defendant's BAC readings would bring the administration of justice into disrepute. I respectfully disagree. As earlier noted, the remedial burden rests on the applicant defendant. That onus is satisfied in this case.

[49] The methodology of s. 24(2) is long settled. It involves the application of a three-prong test followed by a balancing of the results of each to determine whether, as directed by the provision, "it is established that, having regard to all the circumstances, the admission of [the disputed evidence] in the proceedings would bring the administration of justice into disrepute". If so, the "appropriate and just remedy" is, here, an order excluding the incriminatory evidence of the defendant's BAC. As summarized in the seminal case of R. v. Grant, supra, at para. 71:

[A] court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct …, (2) the impact of the breach on the Charter-protected interests of the accused …, and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

An assessment of each "line of inquiry" follows.

(ii) The Seriousness of the State Conduct

[50] A spectrum of Charter-infringing state conduct runs from the negligent or inadvertent to the knowing or intentional negation of constitutional rights. (See R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (C.A.), at para. 41.) In my view, the breaches land toward the more serious end of this spectrum.

[51] There was no legally sanctioned basis for either the defendant's confinement in the rear of the police cruiser or for the treatment he endured while locked inside or for failing to immediately inform the defendant of rights to counsel. This was not a matter of "just missing the mark", as it is sometimes put. Strangways purpose in confining the defendant was without lawful foundation. However well intended, Strangways' shaming exercise had no legal cover and was conducted at the expense of a defendant's Charter-protected rights. Further, the defendant was hardly the first driver to endure similar confinements and reprimands. Strangways conceded that others had been subject to these interventions, allowing, in re-examination, that he does not "always" follow this procedure. Whether or not a universal practice, R. v. Grant, supra, at para. 75, makes clear that "evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion".

[52] Ignorance or disregard for established Charter standards for police conduct also favours exclusion. More than 25 years ago, in R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, the Supreme Court observed that,

Either the police knew they were trespassing, or they ought to have known. Whichever is the case, they cannot be said to have proceeded in "good faith", as that term is understood in s. 24(2) jurisprudence. [Emphasis added.]

Here, Strangways knew he had detained the defendant. Given the two and half years since the release of R. v. Aucoin, he ought to have known that he could not lock a defendant in his cruiser unless it was reasonably necessary to do so. He certainly ought to have known that sparing the defendant from a purposeful embarrassment of the officer's own creation is not a legally cognizable expression of reasonable necessity. And as an experienced officer who had enforced highway traffic legislation throughout the five years since the Supreme Court rendered its decision in R. v. Suberu, he must be fixed with the knowledge, if only constructively, that he could not detain the defendant in these circumstances or for that duration without advising him of his s. 10(b) rights. Returning to R. v. Grant, at para. 75:

[I]gnorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, supra; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59.

[53] The impugned state conduct falls towards the serious end of the constitutional "fault line". As such, it militates in favour of exclusion.

(iii) The Impact of the Charter Breaches

[54] The second line of inquiry "calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed": R. v. Grant, supra, at para. 76.

[55] The interests protected by s. 9 of the Charter encompass both physical and psychological liberty, including the right to make decisions of fundamental importance free from unjustified state interference: see R. v. Grant, supra, at para. 20. The purpose of 10(b) is ensure that persons detained by the state know of their right to counsel in circumstances of vulnerability so they can secure assistance to regain their liberty and guard against the risk of involuntary self-incrimination: see R. v. Suberu, supra, at para. 40. These protected interests of the defendant were negatively impacted in this case. His confinement and the officer's conduct in the cruiser intentionally undermined the defendant's sense of self-worth. The officer's exploitation of the palpable power imbalance reduced the defendant to repeated displays of abject apology and self-deprecation. The s. 10(b) breach compounded the personal indignity, inducing incriminatory answers to questions that ought never to have been asked without first complying with the informational component of the provision. The impact of constitutional breaches count more heavily against the state where, as here, they are "weighed against the absence of any reasonable basis for justification": R. v. Mann, supra, at para. 56 (emphasis in original). (See also, R. v. Harflett, 2016 ONCA 248, at para. 48.)

[56] Even after the Supreme Court's renovation of the s. 24(2) analytical framework, "discoverability", as said in Grant, at para. 122, "retains a useful role … in assessing the actual impact of the breach on the protected interests of the accused". (See, also, R. v. Wong, 2015 ONCA 657.) In R. v. Pino, 2016 ONCA 389, the Court of Appeal very recently affirmed that, for purposes of a s. 24(2) inquiry, a transactional rather than causal or temporal nexus between breach and impugned evidence is sufficient to satisfy the provision's language of "obtained in a manner". While undoubtedly helpful to some s. 24(2) applicants, the much more stringent standard of causality is readily met in the instant case. Strangways, after all, readily agreed that but for the defendant's detention in the rear of his cruiser he would never have detected an odour of alcohol – and, as a result, would never have made the ASD demand or ultimately generated the excessive BAC readings upon which the prosecution's case relies.

[57] Crown counsel seeks to mitigate the effect of the doctrine of discoverability by suggesting that a reasonable basis for an ASD demand was apparent from the moment Sgt. Strangways attended on the defendant's vehicle. The requisite grounds were there, she says; it was only the officer's mistaken view of the law or overly-cautious approach to the existence of an objective platform for his suspicion that prevented him from making the appropriate demand.

[58] Crown counsel here relies on R. v. Ng, 2013 ONCJ 329 and R. v. Kading, 2016 ONCJ 212. Ng is clearly factually distinguishable. Unlike in Ng, the presenting circumstances in the immediate case were ambiguous, the officer was alive to their implications, and he only dismissed the theory giving rise to his suspicion after, however ineffectually, testing and disproving it. Most significantly, prior to placing him in the police cruiser, the defendant — unlike Mr. Ng — had not admitted consuming any alcohol that evening.

[59] The invocation of R. v. Kading reflects a too-close reading of its result rather than it analytical engine. As "reasonable suspicion" is concerned with rational "possibilities" rather than "probabilities", at para. 24 of Kading I wrote that, "[t]he s. 254(2) standard for an ASD demand is satisfied so long as the presence of alcohol in the defendant's body is among the catchment of reasonable inferences that may be drawn from the discernable facts". The discernable facts Crown counsel would here identify include an amorphous odour of alcohol in the vehicle, the defendant's driving conduct, and, consistent with venting the car to evade detection, the open windows and sunroof. If only Strangways had applied the appropriate test, the submission continues, he would have realized that his suspicion was a reasonable one that lawfully supported an ASD demand and, once having advanced the demand, he would have generated exactly the same incriminatory results as he later serendipitously harvested by detaining the defendant in the rear of the cruiser long enough to concentrate and amplify the defendant-specific odour of alcohol.

[60] There are several difficulties with this argument. First, it depends on my revising the evidentiary record. Whatever his reasons (a matter to which I soon return), Strangways' evidence was that he himself did not have a reasonable basis for his suspicion that the defendant had consumed alcohol. By way of significant contrast, the officer in Kading testified to having fully formed the threshold opinion for making a s. 254(2) demand. The issue was not the officer's personal conviction but whether it was objectively supported upon retroactive judicial scrutiny.

[61] Second, the theory of inevitable discovery finds purchase in a fact pattern in which the evidence at issue would certainly have been discovered whether or not the state violated an accused's Charter rights. Here, however, the Crown's position is that the evidence would have come to light if the officer had immediately exercised his discretion to make an ASD demand rather than collecting further information that put his initial suspicions to rest. Such approach depends on my substituting the Crown's view of the appropriate trigger point for the exercise of an officer's discretion for that within the officer's compass of authority and appropriately exercised by him. The result favoured by the Crown would then be a product of counter-factual manipulation rather than the evidence-based theory of inevitability that controls the exercise.

[62] Third, and somewhat related, Crown counsel urges a freeze-frame assessment of the existence of reasonable suspicion rather than the totality approach directed by the governing authorities. In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 (the logic of which underpins the reasoning in Kading), the Supreme Court made clear, at para. 26, that, the "objectively discernible facts" that ground a reasonable suspicion "must account for the totality of the circumstances". Further, and critically, at para. 33:

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion.

Strangways detected an odour of alcohol when he first approached the Mercedes. He suspected that alcohol might play some role in the careless driving he had just witnessed. There were four persons in the Mercedes. Rather than jump to any conclusion respecting whether the driver's consumption of alcohol was the source of the suspect odour, the officer asked the defendant to leave his own car and accompany him to the police cruiser while he, the officer, conducted a mobile olfactory examination – with negative results. Based, then, on his weighing the "totality of the circumstances, including favourable and unfavourable factors", Strangways concluded that he did not have a "reasonable suspicion" to make an ASD demand. Strangways, consciously or not, followed the guidance of Chehil. Crown counsel invites me to do otherwise. I think not.

[63] As with the first line of inquiry, the impact of the Charter trespass strongly favours the remedy of exclusion.

(iv) Societal Interest in a Trial on the Merits

[64] The third consideration focuses on "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion": R. v. Grant, supra, at para. 79. The exclusion, as here, of reliable evidence essential to an effective prosecution jeopardizes both the truth-seeking function of the justice system and the public appearance of fairness. Further, societal interest in a trial on the merits is predictably elevated where the conduct at issue reflects a hazard to public safety. As a result, this line of inquiry generally, and in the immediate case, supports admission of the impugned evidence.

[65] Nonetheless, not all crimes within the same genus of offences are of equal gravity. The allegations before me, while troubling, fall toward the lowest rung on this ladder: the defendant's BAC readings barely exceeded the legal limit; he was not charged with impaired driving nor did he exhibit indicia of impairment other than his excessive speed and abrupt turn; a very experienced arresting officer was "shocked" that the defendant crested the ASD threshold for an approved instrument demand; and, most fortunately, there was no accident or injury. While public safety is a predominant concern in all drinking and driving prosecutions, the circumstances of this case are less aggravating than many if not most. In addition, one must remain mindful of those prospective considerations that underlie the exclusionary remedy. As said by Abella J. on behalf of a unanimous Supreme Court in another "drinking and driving" prosecution (R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 38):

It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 80, the public also has an interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences".

(See, also, the Supreme Court decisions in R. v. Grant, supra, at para. 84; R. v. Collins, [1987] 1 S.C.R. 265, at 282; R. v. Greffe, [1990] 1 S.C.R 755; and R. v. Burlingham, [1995] 2 S.C.R. 206)

(v) Balancing the Interests

[66] Balancing the lines of inquiry is not a mechanical exercise. In R. v. Ting, 2016 ONCA 57, [2016] O.J. No. 307, at para. 85, the Court of Appeal commented that,

All an application judge can do is consciously bear in mind the three factors and determine as best she can whether the admission or the exclusion of the evidence better serves the interest of maintaining justice in a society ruled by law.

[67] Balancing society's interest in a trial on the merits against the gravity of the violations and their impact on the defendant, I am of the view that exclusion, rather than admission, of the defendant's breath test results would better serve the long-term integrity of the administration of justice. In language applicable to the instant case, the Court of Appeal, in R. v. McGuffie, supra, at para. 63, notes that, "If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility". This proposition is particularly appropriate where, as here, the weight of the third consideration is attenuated by the absence of any seriously aggravating factors referable to the defendant or the alleged offence.

D. Conclusion

[68] Consistent with these reasons, the evidence of the defendant's BAC readings is excluded. The prosecution cannot prevail absent evidence of the defendant's BAC at the time of his driving. Accordingly, the defendant is found not guilty.

Released on June 16, 2016

Justice Melvyn Green