Court File and Parties

Court File No.: 14-07712 Central East Region – Newmarket

Date: 2016-01-27

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Claver Gonsalves

Before: Justice Peter C. West

Evidence Heard: November 24, 2015

Submissions Heard: November 24, 2015

Reasons for Judgment Delivered: January 27, 2016

Counsel:

• Mr. B. Jurianz, for the Crown
• Mr. G. Hamilton, for the accused

WEST J.:

Introduction

[1] On October 9, 2014, Mr. Gonsalves was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood contrary to section 253(b) of the Criminal Code. An agreed statement of facts was filed by counsel at the commencement of the trial and only one witness was called, Sgt. Edward Jones, the Acting Staff Sgt. in charge of 4 District on October 9, 2014.

[2] The defence argues the sole issue in this case is whether the detention of Mr. Gonsalves for eight hours after providing the second breath sample breached his section 9 Charter rights and should result in the exclusion of the two breath samples obtained pursuant to section 24(2) of the Charter.

Factual Background

[3] On October 9, 2014, at 1:30 a.m., Mr. Gonsalves was stopped by police for running a red light while turning left at the intersection of Dufferin Street and Major Mackenzie Drive in the City of Vaughan. Mr. Gonsalves was coming home from work.

[4] There was no evidence of impairment observed by the investigating officer, P.C. Komdeur but during his conversation with Mr. Gonsalves he detected an odour of alcohol coming from the accused. Mr. Gonsalves denied consuming any alcohol when he was asked by the officer. P.C. Komdeur formed a reasonable suspicion Mr. Gonsalves had alcohol in his body and made an approved screening device demand at 1:37 a.m. After three attempts Mr. Gonsalves provided a suitable sample and registered a fail. Mr. Gonsalves was placed under arrest for "over 80", handcuffed and placed in the rear of the police cruiser.

[5] The officer retrieved Mr. Gonsalves' cell phone in the event he needed to contact someone for a ride home. He requested Mr. Gonsalves' home and cell phone numbers. Mr. Gonsalves asked if he was going home and P.C. Komdeur advised he was not going home.

[6] At 1:44 a.m., Mr. Gonsalves was advised he was being arrested for driving with a blood alcohol level over the legal limit, advised of his right to counsel, cautioned and read an approved instrument demand pursuant to section 254(3)(a)(i). He was then transported to 4 District, arriving at 1:54 a.m. He was paraded before the booking sergeant, Sgt. Garner at 2:01 a.m.

[7] Mr. Gonsalves wanted to speak to a lawyer and at 2:27 a.m. he was removed from the cell he was lodged in to speak to duty counsel in private.

[8] He entered the breath room at 2:30 a.m. and provided his first breath sample at 2:38 a.m., which resulted in a blood/alcohol reading of 177 mg of alcohol in 100 ml of blood. He was returned to cell #6 after the completion of this test. A second breath sample was obtained at 3:01 a.m., which resulted in a blood/alcohol reading of 172 mg of alcohol in 100 ml of blood.

[9] Mr. Gonsalves was returned to the custody of P.C. Komdeur at 3:07 a.m. He was served with the Certificate of a Qualified Breath Technician and other documentation at 3:45 a.m. by P.C. Carmichael, who noted Mr. Gonsalves' eyes were bloodshot, red and glossy.

[10] Mr. Gonsalves was released by Sgt. Edward Jones at 11:05 a.m. No officer had any contact with Mr. Gonsalves between 3:45 a.m. and 11:05 a.m. when he was released.

[11] Sgt. Jones testified he arrived at 4:30 a.m. to commence his shift. He met with the out-going supervising officer in charge of the station upon arriving at work. He was made aware Mr. Gonsalves had been charged with a drinking and driving offence and was being held in custody. He was aware of the results of Mr. Gonsalves' breath readings. He uses an alcohol elimination rate of 15 mg of alcohol every hour and determines when a detainee is below the legal limit of 80 mg before releasing an accused held in custody. The main concern is for the safety of the individual being detained. The 4 District police station is located at the intersection of two very busy roads. He testified he also considers the safety of the public before releasing a person in custody from the station.

[12] A person charged with "over 80" cannot drive home as their license is suspended for 90 days. Sgt. Jones testified he took into account the fact Mr. Gonsalves made a decision earlier to drive his car with very high breath readings. He wanted to be satisfied Mr. Gonsalves would not make a similar decision upon being released to operate another car. Sgt. Jones was also of the view that Mr. Gonsalves could not be released until such time as his blood/alcohol level was at a level he would be able to understand the terms and conditions of his release papers.

[13] Sgt. Jones testified Mr. Gonsalves was checked by the officer in charge of the cell area every half hour. There is also live monitoring of persons in custody, by officers and civilians at the front desk, by the staff sergeant behind the booking desk and in the staff sergeant's office. Sgt. Jones determined the last breath sample was taken at 3 a.m. He agreed Mr. Gonsalves' blood/alcohol reading would be 80 mg after six hours would have elapsed and consequently could have been released two hours earlier. Sgt. Jones had three lines in his notebook respecting Mr. Gonsalves, which dealt exclusively with Mr. Gonsalves' release.

[14] He would have brought Mr. Gonsalves out of the cell 15 to 20 minutes before his release at 11:05 a.m.

Analysis

Was Mr. Gonsalves' Section 9 Right Under the Charter Breached?

[15] It is clear that the continued detention of Mr. Gonsalves, which lasted in excess of 7 hours (3:45 a.m. to 11:05 a.m.), occurred after the breath samples were obtained, the police investigation was complete and Mr. Gonsalves had been served with the necessary paperwork. Mr. Hamilton argues the breath sample results should be excluded pursuant to section 24(2) because of the section 9 breach. Mr. Hamilton also argues, relying on a reference in R. v. Iseler, [2004] O.J. No. 4332; 190 C.C.C. (3d) 11 (Ont. C.A.) to an excerpt from R. v. O'Connor v. The Queen (1995), 103 C.C.C. (3d) 1 (S.C.C.), at para. 82, that there are two routes available to ordering a stay of proceedings pursuant to section 24(1) of the Charter; namely, "where the prejudice to the accused's right to full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued." Mr. Hamilton concedes that the first route is not applicable to the facts of this case and relies on the second route.

[16] Section 9 of the Charter guarantees that everyone has the right to be free from arbitrary detention. The burden is upon the applicant to present a prima facie case that calls for an answer by the Crown. The length of the detention itself may establish a prima facie case where the duration is considerable: R. v. Iseler, supra, at para. 22.

[17] The Court of Appeal, in R. v. Iseler, supra, held that in a case where a person was detained for 11 hours after his breath tests were completed, with no assessment by the officer in charge of the station as to when the accused could properly be released, his detention was arbitrary and a breach of section 9 of the Charter. However, the Court upheld the lower court's refusal to order a stay. Armstrong J.A. held:

While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's section 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence."

[18] Section 498(1.1) of the Criminal Code states that:

The officer in charge or peace officer shall not release a person ... if the officer in charge or peace officer believes, on reasonable grounds,

(a) That it is necessary in the public interest the person be detained in custody having regard to all of the circumstances including the need to

(i) Establish the identity of the person

(ii) Secure or preserve evidence of or relating to the offence

(iii) Prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) Ensure the safety and security of any victim of or witness to the offence; or

(b) That, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[19] Section 498 mandates the release of an arrested person as soon as practicable, unless it is believed on reasonable grounds that it is necessary in the public interest that the person be detained to prevent the continuation or repetition of the offence or the commission of another offence (see section 498(1) and (1.1)(a)(iii)). Reasonable public interest grounds include the need to detain charged intoxicated persons until they are sober and safe to be released: R. v. Sapusak, [1998] O.J. No. 3299, supra; R. v. Coulter, [2000] O.J. No. 3452 (Ont. Ct. J.), affirmed [2001] O.J. No. 5608 (Sup. Ct. J.); R. v. Padda, [2003] O.J. No. 5502 (Ont. Ct. J.); R. v. Gaudette, [2005] O.J. No. 2399 (Ont. Ct. J.), reversed for other reasons, [2006] O.J. No. 3732 (Sup. Ct. J.); R. v. Kisil, 2009 ONCJ 424, [2009] O.J. No. 3821 (Ont. Ct. J.); and R. v. Prentice, 2009 ONCJ 708, [2009] O.J. No. 6001 (Ont. Ct. J.); R. v. Key [2011] O.J. No. 5972 (Ont. Ct. J.) and R. v. Baxter, [2012] O.J. No. 796 (Ont. Ct. J.). Where an accused has been held for a breathalyzer test, the police are obligated to consider releasing him from custody once the test is completed. Holding an individual beyond the time when he would be releasable pursuant to section 498 of the Criminal Code is "over-holding." Depending on the circumstances, over-holding may breach the person's section 9 Charter rights.

[20] Mr. Gonsalves had been identified; there was no issue in regard to the securing or preserving of evidence that would have justified his continued detention and similarly, no issue in regard to ensuring the safety or security of any victim or witness. There was no belief by any officer that Mr. Gonsalves would not attend court as required. However, it was the evidence of Sgt. Jones that given Mr. Gonsalves' breath readings of 177 mgs and 172 mgs, which were more than two times the legal limit, it was in the public interest not to release him from custody until his blood/alcohol level would have been below 100 mg, using a benchmark of 15 mgs per hour elimination. Further, Sgt. Jones was of the view that Mr. Gonsalves could not be released until such time as his blood/alcohol level was at a level he would be able to understand the terms and conditions of his release papers.

[21] I was also directed to Justice Durno's decision in R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (Ont. Sup. Ct.), an appeal of the trial judge's decision, which found a breach of section 9 of the Charter after the accused was detained for approximately 6 ½ hours after the second reading. The officer did not consider alternatives to detention and allowed the breath readings to foreclose consideration of any other circumstances. The officer focused exclusively on the accused's breath readings. The trial judge assumed that there was a breach of section 9 but did not order a stay as he was of the view that the "over-holding" was a "minor wrong".

[22] Justice Durno, in his usual thorough analysis, held that where an officer focuses on the blood/alcohol level as the sole determinant as to whether to release an accused, this is too narrow a focus and will result in a breach of section 9. Justice Durno held, at para. 93:

The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

[23] Justice Durno has addressed this issue more recently in R. v. Hernandez, 2013 ONSC 4760, [2013] O.J. No. 3347. In addition to his comments in Price, supra, at para. 93, he held at para. 38:

If the appellant is suggesting that the police have a duty to arrange transportation or to conduct a search for transportation, I disagree. R. v. Prentice 2009 ONCJ 708, [2009] O.J. No. 6001 (C.J.) at para. 42. There is no such obligation on the police.

[24] In this case the evidence establishes that Sgt. Jones placed considerable reliance on the high blood/alcohol readings of Mr. Gonsalves. Sgt. Jones used a widely accepted elimination rate to calculate when Mr. Gonsalves could properly be released. In R. v. Paszczenko and R. v. Lima 2010 ONCA 615, [2010] O.J. No. 3974 (Ont. C.A.), at para. 61, the Court held that judges are entitled to take judicial notice "of the fact that the majority of human beings eliminate alcohol in a range of 10-20 milligrams of alcohol per 100 millilitres of blood per hour". In many of the reported cases, officers in charge of the station have exercised their discretion not to release an accused pursuant to section 498(1.1) of the Criminal Code because of the level of the accused's breath readings and estimated the time of release based on a similar rate of elimination. Consequently, in my view, the use by Sgt. Jones of this rate of elimination to determine when Mr. Gonsalves could be released was not unreasonable. However, at no time did Sgt. Jones speak directly with Mr. Gonsalves in order to assess his ability to understand the terms of release. He also testified he was concerned Mr. Gonsalves would be able to appreciate and understand his obligations respecting the release given his high blood/alcohol readings.

[25] In all of the circumstances, I find there was a breach of Mr. Gonsalves' section 9 Charter rights although it is very close to the line. Sgt. Jones should have completed his own assessment of whether Mr. Gonsalves should be released or detained further until his blood/alcohol level was sufficiently reduced. He did not speak to Mr. Gonsalves, there was no evidence as to Mr. Gonsalves' behaviour or conduct which demonstrated any impairment of his level of comprehension, he was not charged with impaired driving, no evidence Mr. Gonsalves had a criminal record for similar offences and there were no outstanding charges. Sgt. Jones based his decision not to release Mr. Gonsalves primarily on the breath readings. There was no objective assessment by Sgt. Jones considering all of the circumstances in coming to his decision to continue Mr. Gonsalves' detention. This is precisely what Justice Durno indicates would lead to a breach of section 9 of the Charter and consequently, I find Mr. Gonsalves was arbitrarily detained.

Should the Breath Readings be Excluded Pursuant to Section 24(2) of the Charter?

[26] In determining whether evidence should be excluded under section 24(2) of the Charter, the court must be satisfied (i) that "the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter;" and (ii) that the admission of the evidence in the proceedings would bring the administration of justice into disrepute: R. v. Strachan, [1988] 2 S.C.R. 980. What constitutes "in a manner that infringed or denied" has been the subject of relatively recent analysis in R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (Ont. C.A.). There, Watt, J.A., for the unanimous court, stated the following:

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

72 To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis: Simon, at para. 69. Courts have adopted a purposive and generous approach to the nexus requirement: Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21. An accused need not establish a strict causal relationship between the breach and the subsequent evidence. The subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct: Wittwer, at para. 21; R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1005. The essential nexus between the breach and the evidence acquired later may be temporal, contextual, causal, or the three in combination: Plaha, 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45; Wittwer, at para. 21; and R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40. Remote or tenuous connections fall short of establishing the necessary nexus: Goldhart, at para. 40; Plaha, at para. 45; and Wittwer, at para. 21.

73 As a general rule, a temporal connection between the Charter breach and the acquisition of the evidence will suffice to make out the nexus requirement under section 24(2). But the temporal connection involves more than simply counting up the time that has elapsed between the two events. What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha, at para. 49.

[27] The onus is on the defence to establish on a balance of probabilities that the evidence proposed to be admitted into evidence was "obtained in a manner" that infringed or denied the accused's Charter rights. In Manchulenko, supra, the Court of Appeal held there must be a nexus between the infringement and the collection of the evidence to be admitted. To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis. In R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21, the Supreme Court held in dealing with a Charter breach relating to the obtaining of a statement:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three": R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely "remote" or "tenuous" will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.

[28] The section 9 Charter breach in this case occurred entirely after the investigation by the police was complete. The last breath sample was taken at 3:01 a.m. Mr. Gonsalves was served with the documentation resulting from the over 80 police investigation at 3:45 a.m. This is the basis of the defence complaint. There is no complaint about any violation of Mr. Gonsalves' Charter rights before 3:45 a.m. The section 9 breach occurs because Mr. Gonsalves should have been released after being served his paperwork. Instead, Mr. Gonsalves was held for a further 7 hours, primarily because of the fact the breath readings were more than two times the legal limit. I have found Mr. Gonsalves was arbitrarily detained in breach of section 9. The defence seeks to exclude the two breath samples, which establish Mr. Gonsalves was over 80 mg of alcohol in 100 ml of blood while he was operating a motor vehicle, pursuant to section 24(2).

[29] Neither in Manchulenko, or any of the cases which are referred to in the paragraphs set out above, is there any suggestion that a breach following the collection of the evidence in question can support the necessary nexus. It is my view, on the facts of this case, there is no nexus between the obtaining of the breath samples and Mr. Gonsalves' being held in custody for 7 hours. In recent decisions Justice Harpur in R. v. Buttigieg, [2015] O.J. No. 1243 (Ont. C.J.) and Justice Rose in R. v. Sytsma, 2015 ONCJ 462, [2015] O.J. No. 4435 (Ont. C.J.) came to the same conclusion. In fact, the Supreme Court of Canada has addressed whether a Charter breach, which occurs after the collection of evidence, is appropriately dealt with under section 24(2). In R. v. Strachan, supra, at para. 45, Dickson C.J.C. held:

Ordinarily only a few Charter rights, ss. 8, 9 and 10, will be relevant to the gathering of evidence and therefore to the remedy of exclusion under section 24(2). So long as a violation of one of these rights precedes the discovery of evidence, for the purposes of the first stage of section 24(2) it makes little sense to draw distinctions based on the circumstances surrounding the violation or the type of evidence recovered. A better approach, in my view, would be to consider all evidence gathered following a violation of a Charter right, including the right to counsel, as within the scope of section 24(2). [Emphasis added]

See also R. v. Iseler, [2004] O.J. No. 4332 (Ont. C.A.), at para. 31 and R. v. Sapusak, [1998] O.J. No. 3299 (Ont. S.C., Thomas, J), affirmed [1998] O.J. No. 4148 (Ont. C.A.).

[30] Consequently, I find that the breach of Mr. Gonsalves' right not to be arbitrarily detained cannot be seen as part of the same transaction or course of conduct by which his breath readings were obtained. Section 24(2) of the Charter, in my view, is not applicable.

[31] If I am incorrect concerning section 24(2)'s application to the breach of section 9 in this case, I would not, in any event, exclude the breath readings. As I have already expressed, the breach by Sgt. Jones respecting Mr. Gonsalves' right not to be arbitrarily detained was just over the line. It is far from clear that Mr. Gonsalves would have been released any earlier than he was if Sgt. Jones had engaged in the assessment described in Price by Justice Durno. Many of the considerations were present in this case, Mr. Gonsalves' car was impounded, he was suspended from driving for 90 days pursuant to the Ontario Highway Traffic Act, he had made the decision already of getting behind the wheel of his car after consuming alcohol to excess, his blood/alcohol level was twice the legal limit, Sgt. Jones articulated his concern about Mr. Gonsalves' comprehension given the breath readings and whether Mr. Gonsalves would understand the obligations placed upon him pursuant to the release papers. The breach was Sgt. Jones not conducting an objective assessment before deciding whether to release or not. Further, it is clear on the evidence of Sgt. Jones his decision to detain Mr. Gonsalves was made in good faith in the interests of Mr. Gonsalves' safety and the safety of the public.

[32] Applying the principles in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I view the section 9 breach to be relatively minor. There was no evidence led of systemic abuse by officers in charge of police stations in York Region detaining persons charged with over 80 routinely for extended periods of time solely based on their blood/alcohol level. In many of the reported cases, officers in charge of the station exercised their discretion not to release an accused pursuant to section 498(1.1) of the Criminal Code because of the level of the accused's breath readings and estimated the time of release based on a similar rate of elimination. Consequently, in my view, the use by Sgt. Jones of this rate of elimination to determine when Mr. Gonsalves could be released is not unreasonable. As many of the over-holding cases have found, the decision to detain someone until their blood/alcohol level is lowered is in most cases a reasonable one, which is made by the officer in charge of the station in the interests of the accused's own safety and the public safety.

[33] Considering the impact of the breach on Mr. Gonsalves, as I have already indicated, it is unknown whether Sgt. Jones would have made a different decision had he met with Mr. Gonsalves to form his own assessment of Mr. Gonsalves' level of intoxication. Consequently, Mr. Gonsalves might have been held in custody for exactly the same length of time he was.

[34] Finally, in this case, as in most, society's interest in the adjudication of the charge on its merits militates in favour of admission of the breath test results and a trial on the merits.

[35] Balancing all of these factors I am of the opinion the breach of Mr. Gonsalves' section 9 Charter right should not result in the exclusion of the evidence of his two breath readings.

Should the Charge of Over 80 be Stayed Pursuant to Section 24(1) of the Charter?

[36] It is my view, given that the section 9 breach occurred after the collection of the breath samples, the only possible remedy available to the defence is that of a stay of proceedings pursuant to section 24(1). In R. v. Iseler, [2004] O.J. No. 4332 (Ont. C.A.) Armstrong J.A., for the Court, held that in a case where a person was detained for 11 hours after his breath tests were completed, with no assessment by the officer in charge of the station as to when the accused could properly be released, his detention was arbitrary and a breach of section 9 of the Charter. However, the Court upheld the lower court's refusal to order a stay. Armstrong J.A. at para. 31, held:

While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's section 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence."

[37] The defence argues the over 80 charge should be stayed pursuant to section 24(1) because of the section 9 Charter breach. In my view, the defence position is fully answered by R. v. Sapusak, supra, and R. v. Iseler, supra.

[38] In Sapusak, the Court of Appeal found that considering the high readings, the police were justified in detaining the accused for his own protection. The readings in Sapusak were 130 mgs of alcohol in 100 ml of blood, which are considerably less than in Mr. Gonsalves' case. Even if the Court had concluded that the detention was arbitrary, the Court held there was no justification for excluding the breath readings as there was no temporal or causal connection between the breach and the obtaining of the evidence and that a stay of proceedings was not appropriate as it was not one of the clearest of cases.

[39] As indicated above, in Iseler, supra, the Court of Appeal found that detaining the accused for 11 hours, with no assessment by the officer in charge of the station as to when the accused could properly be released, the detention was arbitrary and a breach of section 9 of the Charter. The breach, however, was entirely post-offence and had nothing to do with the investigation and the gathering of evidence against the accused. Armstrong J.A. cited Sapusak where the officer had made an assessment of the accused and determined that he could be released when his blood/alcohol was below 50 mgs. In Iseler there was no assessment and he was held until his blood/alcohol level would have been near zero. Consequently, his section 9 Charter right not to be arbitrarily detained was infringed. Despite this breach, the Court of Appeal held that a stay pursuant to section 24(1) of the Charter was not the appropriate remedy.

[40] A judicial stay of proceedings is an exceptional remedy that is reserved for the clearest of cases. The leading authorities are generally recognized as R. v. O'Connor, [1995] 4 S.C.R. 411, Canada (M.C.I.) v. Tobiass, [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. The principles that emerge from these three cases have very recently been summarized by the Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, at paras. 57:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

See also R. c. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309 (also referred to as R. v. Babos), which has further addressed a stay pursuant to section 24(1) of the Charter. Justice Campbell in R. v. Waisanen, [2015] O.J. No. 4835, at paras. 29-33 and 36-38, has succinctly summarized the highlights in R. v. Babos and I adopt his comments.

[41] The claim before me clearly falls within the "residual category" of cases that may attract the remedy of a judicial stay. The defence concedes this. In such cases, as said by the Supreme Court in an oft-quoted passage from Tobiass, supra, at para. 91 (and re-affirmed in Regan, supra, at para. 55):

The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice.

As restated by the Court of Appeal in Zarinchang, at para. 58, the concern is "not ... about continuing prejudice to the applicant by proceeding with the prosecution" but, "[r]ather, ... for the integrity of the justice system."

[42] Importantly, the Court of Appeal continues:

However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits?

[43] Accordingly, the Court notes, at para. 60, judges hearing residual category applications, as here, "will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion." This balancing, the Court then explains, commands regard for

... the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

[44] In my view, a proper balancing of these factors militates against the remedy of a stay of proceedings. There is a strong public interest in having drinking-and-driving offences resolved on their merits. Although I have found Mr. Gonsalves' section 9 Charter right was breached, one cannot ignore the fact that Sgt. Jones, who was in charge of the station, determined Mr. Gonsalves should be detained after his breath readings were lowered and was acting in good faith. The breach, if it occurred, was that Sgt. Jones focused his assessment too narrowly on the high blood/alcohol readings. The breach occurred after the commission of the offence and the gathering of evidence. It was in no way related to the offence or evidence gathering. In those circumstances, in my opinion, the over-holding should not result in a stay of proceedings. This is not the clearest of cases.

Released: January 27, 2016

Signed: "Justice Peter C. West"