Court File and Parties
Ontario Court of Justice
Date: August 26, 2016
Court File No.: Red Lake, On 1511 998 152226 00
Between:
Her Majesty the Queen
— and —
Jonathan Miller-Williams
Before: Justice Peter T. Bishop
Heard on: June 22, 2016
Reasons for Judgment released on: August 26, 2016
Counsel
Sarah Burden — counsel for the Crown
Daniel Gunn — counsel for the defendant Jonathan Miller-Williams
BISHOP J.:
Charges
[1] Jonathan Miller-Williams stands charged that on the 14th day of September, 2015 in the Municipality of Red Lake:
Did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, did have the care and control of a motor vehicle contrary to Section 253(1)(b) of the Criminal Code;
While his ability to operate a motor vehicle was impaired by alcohol, did have the care and control of a motor vehicle contrary to Section 253(1)(a) of the Criminal Code.
[2] At the commencement of the trial on consent the Crown proceeded with count one only.
Evidence of Constable Aaron Blanchard
[3] Constable Blanchard is an Ontario Provincial Police constable stationed in Red Lake and was conducting a R.I.D.E. program with his partner Constable Derek Brait. It was approximately 2:00 a.m. on September 14, 2015 and dark.
[4] He observed a black SUV/truck style vehicle turn into the VTL business. There was no other vehicle on the road and he estimated that it was 200 yards away. He discontinued the R.I.D.E. program, followed the observed vehicle that went behind a building and he lost sight of it.
[5] He was concerned about protecting the public from impaired drivers and was of the view that this vehicle was avoiding the R.I.D.E. check.
[6] He observed a black SUV parked at the end of a row of other vehicles and approached that vehicle and there was a male in the driver's seat sleeping.
[7] He approached the driver's seat which was reclined and knocked on the window and had a quick response from the occupant. The occupant produced his British Columbia driver's license and had a conversation with the officer. The officer detected an odour of alcohol on his breath and his eyes were red and glossy.
[8] At 12:23 a.m. the officer formed a suspicion that the accused had consumed alcohol and at 12:23 a.m. he read the approved screening device demand.
[9] Constable Brait followed him into the parking lot.
[10] The accused opened the door and an alarm system was activated. The accused fumbled with his documents and couldn't find the keys and was looking in the glove box. The keys were located in the centre console and it took approximately ten seconds for the accused to locate the keys.
[11] The accused was escorted to the cruiser and the approved screening device was administered which registered a fail.
[12] The officer then believed that the accused blood alcohol level was greater than 80 milligrams of alcohol per 100 millilitres of blood.
[13] At 12:31 a.m. the accused was read his rights to counsel and given the 1-800 toll free number.
[14] The accused, at first, said that he did not understand his rights to counsel and then said that no, he did not need a lawyer.
[15] The caution was read to the accused at 12:32 a.m. and the breathalyzer demand was read 12:34 a.m. and he was arrested and taken to the detachment.
[16] The vehicle was searched and this officer observed that the radiator was hot to the touch and Constable Brait had touched the exhaust of this vehicle which was also hot.
[17] No alcohol was found in the vehicle and the vehicle had a lived-in appearance with food, clothing and blankets in the back seat.
[18] The vehicle was identified as a black Honda Ridgeline truck.
[19] The accused was taken to the detachment at 12:40 a.m. and arrived at 12:43 a.m.
[20] The breathalyzer technician was summonsed and the accused wished to speak to a lawyer.
[21] At 1:24 a.m. Sergeant Ewold, the breathalyzer technician, was ready to administer the tests.
[22] Constable Blanchard advised the Sergeant Ewold of his grounds for arrest and at 2:08 a.m. the test results were completed.
[23] The accused was released at 4:09 a.m. on a promise to appear and given a 90 day license suspension.
Evidence in Cross Examination
[24] This officer was not able to identify the vehicle when first observed only as a SUV which was black. He observed the vehicle being driven for approximately 10 to 15 seconds. When inspecting the accused's motor vehicle the ignition was off and he was not sure if the vehicle was in park.
[25] The vehicle was in a parking spot on private property and there was no danger to the vehicle inadvertently being put in motion as it was not running.
[26] The accused's driver's seat was reclined and the keys were not in the ignition, with the windows up and the door was locked.
[27] The officer admitted that he was exercising his common law powers and not relying on the roadside stop or R.I.D.E.
[28] He did not tell the accused that he was free to go, nor that he was detained and did not read the accused's rights to counsel when initially stopped.
[29] The officer did not check around the rest of the parking lot area of VTL for other vehicles.
[30] The officer had no idea about the vehicles and what was referred to parking lot 1 or parking lot 2, the area to the right.
[31] The lights of this vehicle were not distinctive and there was no evidence of intention to set the motor vehicle in to drive.
[32] It appeared that someone was living in the vehicle and the accused was wearing pajama bottom pants and a t-shirt.
[33] The accused was agitated and indicated that he didn't do anything wrong.
Evidence of Constable Derek Brait
[34] Constable Brait is an Ontario Provincial Police officer and was Constable Blanchard's partner.
[35] He was at the R.I.D.E check program on Highway 105 at the intersection of Hughes Crescent. That area was well lit and had a good view of the road for approximately 500 or 600 meters.
[36] He observed head lights travelling down a hill and it turned into the VTL business.
[37] It appeared, to this officer, that it was a dark pickup truck and he estimated that it was 200 metres away and he lost sight of the vehicle as it passed through an area of trees.
[38] He was of the view that the R.I.D.E. lights were activated and easily visible by anyone and stated that he was aware that the owner of VTL lived at that location.
[39] Constable Blanchard arrived at the scene first and there were no yard lights on at VTL and there were no vehicle lights on as well.
[40] This officer looked for a pickup and he drove further into the parking lot area and checked the area to the right.
[41] There were no footprints, and he saw no people.
[42] There were several other pickups and he was alerted by Constable Blanchard that he had found someone in a Honda Ridgeline.
[43] Constable Blanchard was talking to the driver and was complaining that he was sleeping and that he was disturbed.
[44] He observed that the accused was wearing a toque, pajama pants and a t-shirt, had red eyes and produced a British Columbia health card.
[45] He was wearing flip-flops on his feet.
[46] The accused stated that he was there all afternoon and he simply was sleeping.
[47] He observed a sleeping bag in the truck and the sun had been set for approximately three hours.
[48] There was also a cooler and a guitar in the vehicle. Constable Blanchard could smell alcohol on the accused's breath and he was read the approved screening device demand. The accused was concerned about his medication for acid reflux and the approved screening device was calibrated properly.
[49] This officer smelled alcohol when the accused was blowing into the approved screening device.
Evidence in Cross Examination
[50] This officer stated it was approximately two minutes from the time that he observed the vehicle to when it entered the parking lot at VTL.
[51] This officer viewed five motor vehicles in the yard and he touched the accused's exhaust pipe and found it to be hot, but he did not record the colours of any other pickup in the parking lots.
[52] He did not check for command start and observed that there were no issues with the accused walking or functioning properly.
[53] This officer also observed another person, backlit walking in the parking lot area. The accused speech was not slurred and he did not see whether the flip-flops were being worn only in the inside of the motor vehicle.
Defense Position
[54] The accused alleges breaches of Section 8, 9 and 10 of the Canadian Charter of Rights and Freedoms, namely arbitrary detention or imprisonment, unreasonable search or seizure and rights to counsel.
[55] With respect to arbitrary detention Section 9 and unlawful search Section 8 it is the relevant sections state:
(a) Section 9 everyone has the right not to be arbitrarily detained or imprisoned;
(b) Section 8 states "everyone has the right to be secure against unreasonable search or seizure".
[56] The framework outlined in R v Mann (2004) 2004 SCC 52, 185 C.C.C. (3d) 308 at paragraph 36 states as follows:
(a) The accused must demonstrate that he or she had a reasonable expectation of privacy and the place which was the subject matter of the search or the things seized or both;
(b) Warrantless searches and seizures are presumed to be unreasonable and violate Section 8 of the Charter;
(c) The presumption that a warrantless search violated Section 8 may be rebutted by the Crown showing, on the balance of probabilities that the search was authorized by law, the law is reasonable and this search or seizure was carried out in a reasonable manner.
[57] Essentially the constitutionality of police conduct in the context of a motor vehicle stops/search has to be assessed on a step-by-step basis and regard to the manner in which the events unfolded to determine whether the police, at any particular time, acted within the scope of their lawful authority or infringed the accused's rights under Section 8 or 9 of the Charter.
[58] The law governing the meaning of "detention" within the scope of Section 9 of the Charter was restated in R v Grant, (2009) S.C.C. 32, wherein the Court refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of State conduct that he or she had no choice but to comply.
[59] A person is arbitrarily "detained" within the scope of Section 9 of the Charter if the person's detention was not authorized by law and was, therefore unlawful. This is stated in Grant supra and Mann.
[60] Lawful authority does not exist for a detention merely because the police are acting within the scope of their duties. Police conduct that interferes with the liberty or freedom of the individual no less is not rendered lawful merely because it assists in the performance of police duties, and will be lawful only when authorized by statute or by the common law.
[61] It is conceded here that the police were acting pursuant to their common law duties and not pursuant to Section 48 of the Ontario Highway Traffic Act.
[62] Under common law powers, the police have the lawful authority to detain a person for investigative purposes based on the person's connection to a particular crime R v Mann, (2004) S.C.C. 52. However; in addition to other requirements, police must have reasonable grounds to detain the person and this requires reasonable grounds to suspect in all of the circumstances that the person is connected to a particular crime. The Supreme Court has also held that a hunch is not sufficient basis for an investigative detention. Moreover, even where there is a sufficient basis for an investigative detention, the search power incident to investigative detention is merely a protective one based on officer's safety, does not extend to a search for evidence generally.
[63] The defence's position is that the accused was detained and the subsequent questioning and gathering of evidence from the applicant based on suspicion violated Section 8 and 9 of the Charter of Rights.
[64] With respect to Section 10(b) of the Charter, it states "everyone has a right on an arrest or detention to retain and instruct counsel without delay and be informed of that right".
[65] Those duties are to:
Inform the detainee of his or her right to retain and instruct counsel without delay and the existence of availability of legal aid and duty counsel;
If a detainee has indicated that they have decided to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances);
To refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to speak to counsel.
[66] The first duty is an informational duty, while the second and third duties are implementational in nature and are not triggered until the detainee has indicated their desire to exercise their right to counsel.
[67] In the present case, the accused was not advised that he had the right to retain and instruct counsel and was obviously not given the opportunity to do so upon initial detention and this was clear breach of Section 10(b) of the Charter of Rights.
Crown's Position
[68] The Crown submits that this stop was not an arbitrary detention nor unlawful pursuant to Section 8 or 9 of the Charter of Rights and Freedoms.
[69] The Crown essentially agrees with the facts and law as stated in the defense factum at the first stage analysis requires a consideration of whether the police conduct falls within the general scope of any duty imposed on the officer by statute or common law. It has been held that at common law, the main duties of the officers are the "preservation of the peace, the prevention of crime and the protection of life and property". As stated in R v Mann, 2004 SCC 52, 2004 S.C.C. 52; R v Dedman, [1985] 2 S.C.R. 2; and R v Dillon [2006] O.J. 1366, 32 M.V.R. (5th).
[70] The Crown also submits that the accused's rights to counsel were explained in more common terms at the scene and he stated that he did not need a lawyer but he was again advised of his right to counsel upon arriving at the police detachment therefore there was no Section 10(b) breach.
[71] If a breach is found, in order to exclude evidence pursuant to Section 24(2), the court must analyze the following:
(i) the seriousness of the Charter infringing state conduct;
(ii) the impact of the breach of the Charter protected interests of the accused;
(iii) society's interest in the adjudication of the case on its merits.
[72] There must be a balance when looking at all of the circumstances; the court must decide whether the evidence should be excluded in order to protect the administration of justice repute. The final determination is aimed at protection of long term repute of the administration of justice.
[73] In this case, the Crown submits that admitting the evidence would not bring the administration of justice into disrepute.
[74] Here, the Crown states the officers had honestly and reasonably believed they were acting lawfully pursuant to their common law powers and were not acting in bad faith and the breach was not serious.
[75] Further, the Crown submits that taking a breath sample was minimally intrusive, militating in favour of admitting the evidence and with respect to the reliability of the sample taken from his body are generally reliable and the risk of err inherent to proving trier fact made tip in favour of admission. As well, the breath samples are essential to the Crown's case. The Crown submits that these factors militate in favour of admitting the evidence.
Decision
[76] The police officers believed that the vehicle that they found at the VTL parking lot was the same vehicle that they observed travelling on Highway 105. Their position is that they were exercising their common law powers and detained the accused and did not immediately instruct him on his right to counsel without delay.
[77] With respect to the police officers observations they saw a dark vehicle and gave different descriptions, e.g. dark pickup truck, dark SUV. The officers had a hunch that the driver of that vehicle was trying to avoid the R.I.D.E. check in that the vehicle, and when they found the accused in the driver's seat in a reclining position sleeping they concluded that he was the driver of the vehicle that they saw on Highway 105.
[78] According to both officers there were five to fifteen vehicles in the various parking lots at VTL. They surmised or concluded that the vehicle that the accused was sleeping in must have been the individual who was driving on Highway 105. It was a hunch and not based on reasonable and probable grounds.
[79] The officers did a very cursory investigation of the number of vehicles in the various parking lots, did not do a complete sweep and could not identify the colours of any of the other vehicles that they observed.
[80] This was not a R.I.D.E. or roadside stop. The rights of drivers in this country are prescribed when it comes to brief, focused roadside investigations related to impairment of the ability to operate a motor vehicle. This prescription is justified as a reasonable limit upon the rights of drivers. However; the Supreme Court has made clear long ago that those limits applicable at random stop programs cannot be extended to include a right to search without a warrant, or without reasonable grounds.
[81] The vehicle was on private property and the officers stated that they knew about the Charter of Rights and Freedoms provisions specifically dealing with Section 8, 9 and 10 of the Charter. They did not comply strictly with those requirements and jumped to a conclusion not based on reasonable and probable grounds.
[82] In these circumstances I am finding that there was a breach of Section 8, 9 and 10 of the Charter of Rights and Freedoms. The breath samples that officers obtained were conscripted evidence in light of the Charter breaches and I must address the Section 24(2) and must analyze whether those breath sample should be excluded.
Section 24(2) Analysis
[83] The purpose of Section 24(2) of the Charter is guard against the admission of evidence obtained by a breach of Charter rights where admitting that evidence would bring the administration of justice into disrepute. The phrase "bring the administration of justice into disrepute" must be understood in the long term sense of maintaining the integrity of, and public confidence, in the justice system. Section 24(2) does not focus on the immediate reaction to an individual case. Instead, it focusses on whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence. The inquiry is objective and asked whether a reasonable person informed of all relevant circumstances and devised underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[84] Section 24(2) focuses not only long term, but prospective. The fact of the Charter breach means that damage has already been done to the administration of justice. Section 24(2) seeks to ensure that evidence obtained is as a result of that breach does not do further damage to the repute of the justice system. The focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused. It is focussed on systemic concerns and on the broad impact of admission of the evidence in the long term repute of the justice system.
[85] In answering the question whether evidence should be excluded the Court must assess and balance the effect on admitting evidence upon society's confidence in the criminal justice system. In doing so, the Court must have regard to the seriousness of the Charter infringing conduct; the impact of the breach on the Charter, protected interests of the accused; and the societal interest in the adjudication of the case on its merit.
Seriousness of the State Conduct in Violating the Charter
[86] In examining the seriousness of the State conduct, including the nature of the police conduct which led to the discovery of the evidence, the Court must consider the need to preserve public confidence in the justice system and the need to ensure conformity to the rule of law. Would the admission of the evidence and the message that the Court affectively condone breaches the citizens' rights by failing to disassociate itself from the fruits of unlawful conduct. As part of that analysis, the move severe deliberate or reckless the state conduct is, the greater the need will be for the Court to disassociate itself from that conduct. If the State conduct involves inadvertent or trivial violations of the rights of an accused, the existence of good faith on the part of the police are used in the circumstances such as need to prevent the destruction of evidence, those factors will favour in the admission of the evidence.
[87] The Supreme Court of Canada pointed out at Mellenthin, a 1991 decision, that any attempt to extend the random stop program to include a right to search without a warrant, without reasonable grounds, constitutes a serious a Charter violation. This has been settled law for a long period of time. Given the fact that the check stop program such as R.I.D.E. are an infringement of civil liberties, albeit one that is justified within the context of attempts to reduce impaired driving, police officers must be aware of the limits of their authority while acting pursuant to that limited authority. Accordingly, the denial of Mr. Miller-Williams' Charter guaranteed rights was not trivial. Constable Blanchard did not appear to turn his mind whatsoever to his obligations of the Charter, and according to the Charter the violations were serious and effectively reckless. Ignorance by police officers of well established Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith. In my view, the breach of rights guaranteed by the Charter can only be viewed as a serious violation. This heading favours exclusion of the evidence.
Evidence of the Charter Violations on Mr. Miller-Williams
[88] This heading calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right which was infringed. The impact of the breach may range on a spectrum from technical and fleeting to profoundly intrusive. The more serious the impact on the protected interest, the greater the risk that admission of evidence may signal to the public that Charter rights are of little actual protection to citizens, encouraging public cynicism thereby bringing the administration of justice into disrepute.
[89] In this situation, police officers did not have a legal right to detain Mr. Miller-Williams. The officer ignored the limits on the right to detain and extended the detention. The denial of the rights to counsel and the subsequent taking of breath samples without authority favours exclusion of the evidence.
The Societal Interests in the Adjudication on the Merits
[90] This aspect of the inquiry reflects society's collective interests showing that those who break the law are brought to trial and dealt with according to the law. Society generally expects that a criminal trial would be adjudicated on its merits. This aspect of analysis examines whether the truth seeking function of the trial process would be better served by the admission of the evidence whereby it's exclusion. The reliability of the evidence obtained by the Charter breach is a factor as is a significance of the evidence to the case for the Crown. The seriousness of the offence is also part of the considerations.
[91] The fact that evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of the case on its merits is weighed against factors pointing to exclusion in order to balance the interests of truth with the integrity of the justice system. In other words; does the vindication of the specific Charter violation by excluding the evidence extract too great a toll on the truth seeking goal of the criminal trial. In this case, the evidence obtained by the police is real evidence and therefore reliable. This submission is essential to the Crown's case. This exclusion would end the prosecution. The breath samples were taken without lawful authority, and the accused was not given his rights to counsel. An analysis of this heading favours exclusion of the evidence.
Ruling
[92] The State conduct in this situation was a serious violation of Mr. Miller-Williams' protected interest. The officer ignored or was completely unaware of legal principles which have been set in law for 25 years. The violation significantly impacts the interest protected by the Charter. In balancing those findings with society's interest in adjudication of merits, I am finding the admission of evidence would bring the administration of justice into disrepute. The evidence is excluded and there will be a finding of not guilty.
Released: August 26, 2016
Signed: "Justice Peter T. Bishop"