Court File and Parties

Date: 2016-02-10

Court File No.: Brampton 14-14249

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Kevin Stennett

Before: Justice P.A. Schreck

Heard on: August 31, 2015; January 18-19, 2016

Ruling on Charter Application

Counsel:

S. Andersen and R. Levan – counsel for the Crown

V. Paskarou – counsel for the defendant

SCHRECK J.:

[1] Following a collision on the highway, Kevin Stennett provided a breath sample into a police officer's approved screening device ("ASD") which registered a fail. He was consequently arrested and later charged with driving while impaired and while the concentration of alcohol in his blood exceeded the legal limit.

[2] Mr. Stennett has applied to exclude evidence from his trial based on two distinct alleged violations of s. 8 of the Charter. The first is that while the officer who made the ASD demand had a reasonable suspicion that the applicant had alcohol in his body, he did not have a reasonable suspicion that he had been operating a motor vehicle within the preceding three hours, as required by the Criminal Code. As a result, the demand was not valid and constituted a breach of s. 8. The applicant seeks to have excluded all evidence that was obtained following the ASD demand.

[3] The second alleged breach is based on the fact that the applicant was subjected to video surveillance while urinating in a cell at the police detachment. As a remedy for this breach, he seeks to have excluded the results of breath tests taken shortly after the breach occurred.

[4] For the reasons that follow, I am not persuaded that the first breach has been made out. While I am satisfied that the second breach has been established, I am not persuaded that the evidence ought to be excluded. As a result, the application is dismissed.

I. EVIDENCE

A. The ASD Demand and Arrest

[5] On October 10, 2014, Nghia Thi Tran was driving her mother, Hon Ly, home. She was travelling westbound on Highway 401 near Dixie Road when her vehicle was hit from behind by another vehicle. Ms. Tran and the driver of the other vehicle, who was later identified as the applicant, both pulled over to the side of the road. A third vehicle also pulled over and its driver called the police. That vehicle later left. The applicant spoke to Ms. Tran and provided her with his driver's licence.

[6] Ms. Tran did not testify as to the time at which the collision occurred and could not recall if she told the police the time of the collision. At one point, she testified that she had first entered Highway 401 at Yorkdale Road in Toronto at 4:00 p.m., although she later said that it had been at 3:30 p.m. Ms. Tran believed that the police arrived more or less half an hour after the collision occurred. Ms. Ly gave no evidence about times.

[7] Cst. Jean-Michel Valade of the Ontario Provincial Police ("OPP") testified that at 4:30 p.m. on October 10, 2014, he was dispatched to a motor vehicle accident on Highway 401 east of Dixie Road and arrived there at approximately 4:36 p.m. An ambulance and fire truck were already on scene. Cst. Valade spoke to Ms. Tran, who told him that her vehicle had been hit by the applicant's vehicle.

[8] At 4:40 p.m., Cst. Valade spoke to the applicant, who admitted that he had hit Ms. Tran's vehicle. Cst. Valade noticed an odour of an alcoholic beverage emanating from the applicant's breath. Although the applicant denied having consumed any alcohol, Cst. Valade testified that at 4:44 p.m., he formed a reasonable suspicion that the applicant "was operating a motor vehicle with alcohol in his body", so he made a demand that the applicant provide a breath sample into an ASD. Cst. Valade gave no evidence as to what belief, if any, he had about the time at which the applicant had been driving.

[9] At 4:48 p.m., the applicant provided a breath sample into the ASD, which registered a "fail". As a result, he was arrested and taken to the OPP detachment.

B. Video Surveillance in the Cells

[10] After being booked at the detachment, the applicant was lodged in a cell which was subjected to video surveillance, a portion of which was played at trial. In it, the applicant is seen standing in front of the toilet and urinating. His back is to the camera and no part of his buttocks or genitalia are visible. There was evidence that video from the cells could be seen by both male and female officers on a monitor in the detachment.

[11] Cst. Valade testified that there was a sign in the lodging area of the detachment which stated that the lodging area was under video surveillance. At the time of trial, the cell area had spray painted words on the wall stating that the area was under video surveillance, but Cst. Valade could not say whether this had been present at the time the applicant was there. Cst. Justin Maguire, the qualified breath technician, believed that the signs had been placed there in July or August 2014.

[12] There was evidence that in February 2014, in response to a series of court decisions about the privacy concerns arising from the video surveillance of prisoners, a directive was issued by the OPP Deputy Commissioner which outlined procedures to be followed to ensure that the privacy of prisoners was protected. The directive stated that when a prisoner was first placed in a cell, the officer should be seen on video pointing out the location of the video camera to the prisoner. Officers were also required to make written notations of the steps that were taken to ensure that the prisoner was aware of the video. As well, prisoners were to be offered privacy gowns to wear while using the toilet. None of these steps were followed in this case.

[13] From the cells, the applicant was taken to the breath testing room where he provided two breath samples into an approved instrument at 6:14 p.m. and 6:37 p.m., resulting in readings of 172 and 166 mg of alcohol per 100 ml of blood, respectively.

II. ANALYSIS

A. Reasonable Suspicion

[14] Section 254(2) of the Criminal Code provides as follows:

254. (2) If a peace officer has reasonable grounds to suspect that a person has alcohol . . . in their body and that the person has, within the preceding three hours, operated a motor vehicle . . . or had the care or control of a motor vehicle . . . , whether it was in motion or not, the peace officer may, by demand, require the person . . . .

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[15] In this case, Cst. Valade testified that he had a reasonable suspicion that the applicant had alcohol in his body, but did not testify that he had a reasonable suspicion that the applicant had operated a motor vehicle within the preceding three hours. There is no issue that the applicant actually had operated a motor vehicle within the preceding three hours. However, the applicant submits that the officer failed to turn his mind to this statutory prerequisite and, as a result, the ASD demand was invalid and constituted a violation of the applicant's s. 8 Charter rights.

[16] There is older authority that suggests that the requirement for a reasonable suspicion relates only to the presence of alcohol in the person's body and not the fact that the person had been driving: R. v. MacPherson, 150 C.C.C. (3d) 540 (Ont. C.A.) at paras. 5-6; R. v. Sweiterzecki, 97 C.C.C. (3d) 285 (Ont. C.A.) at para. 8. However, those cases were decided in relation to an earlier and differently-worded version of s. 254(2), which read as follows:

254. (2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle . . . or who has the care or control of a motor vehicle, . . . whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

The section was amended to the current version in 2008 by s. 19 of the Tackling Violent Crime Act, S.C. 2008, c. 6.

[17] Under the earlier version, the police officer did not have to have a reasonable suspicion that the person was driving. However, the demand was only valid if the Crown could prove that the person actually was driving: R. v. McPherson, supra at para. 6. In my view, the current wording makes it clear that a peace officer must have a reasonable suspicion with respect to both the presence of alcohol in the person's body and the operation or care and control of a motor vehicle within the preceding three hours. Were it otherwise, the police could simply make ASD demands of anybody whom they suspected had been drinking, regardless of whether there was any reason to believe that the person had been operating a motor vehicle. Of course, whether or not the person actually was driving is immaterial to the validity of the demand provided that the officer's suspicion was reasonable: R. v. Pociurko, [2015] O.J. No. 5270 (C.J.) at para. 10.

[18] All of that said, I do not believe that Cst. Valade's failure to testify that he had a reasonable suspicion that the applicant had been operating a motor vehicle within the preceding three hours renders the demand invalid. It is well established that a police officer need not use any particular "magic words" to establish a subjective belief and that such a belief can be inferred from circumstantial evidence: R. v. Clarke, 2000, 1 M.V.R. (4th) 298 (Ont. S.C.J.) at para. 14. In this case, Cst. Valade was dispatched at 4:30 p.m. and arrived on scene at 4:36 p.m. to find the applicant and Ms. Tran at the side of the highway with their vehicles. I have no doubt that he correctly inferred that they had not been standing at the side of the highway for over three hours before calling the police. In these circumstances, I infer that he subjectively had a suspicion that the applicant had been operating a motor vehicle within the preceding three hours and that suspicion was objectively reasonable. The demand was accordingly valid and there was no violation of s. 8 of the Charter.

B. Video Surveillance

[19] There is no issue that the applicant was subjected to video surveillance while urinating. The applicant submits that this constituted a violation of his s. 8 Charter rights. There is a considerable amount of authority to support this submission: R. v. Mok, 2014 ONSC 64, 59 M.V.R. (6th) 234 (Ont. S.C.J.) at paras. 47-83, rev'g 2012 ONCJ 291, 34 M.V.R. (6th) 116 (Ont. C.J.), lv. to appeal refused 2015 ONCA 608, 82 M.V.R. (6th) 1 (Ont. C.A.); R. v. Grewal, 2015 ONCJ 517, [2015] O.J. No. 4962 (C.J.) at paras. 17-18; R. v. Korzh, [2015] O.J. No. 6909 (C.J.) at paras. 23-27.

[20] While there is some evidence that there may have been signage indicating the presence of video surveillance, it is difficult to understand how this affords protection of a prisoner's privacy. The prisoner has no choice but to urinate in view of the camera: R. v. Mok, supra (S.C.J.) at paras. 72-73; R. v. McLaren, [2015] O.J. No. 6412 (C.J.) at paras. 10-13. I find that there was a breach of s. 8. I must therefore consider s. 24(2) of the Charter.

[21] The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the first of which is the seriousness of the violation. In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. In this case, the OPP quite properly issued a directive to ensure that the Charter was complied with in accordance with a number of recent judicial decisions. Unfortunately, the police in this case chose to completely ignore that directive. The only conclusion I can draw from this is that they had little regard for the applicant's Charter rights. This renders the breach serious.

[22] The impact of the breach, however, was minimal. The applicant did not give evidence of having suffered any impact whatsoever and no private portion of his body was exposed. The view of his back that can be seen on the video is much like the view that can be seen in any public male washroom.

[23] With respect to society's interest in an adjudication on the merits, the evidence sought to be excluded is reliable and crucial to the Crown's case, so this branch of the inquiry favours admission.

[24] Having balanced the three factors, I am not persuaded that the long-term reputation of the administration of justice requires that the evidence be excluded.

III. DISPOSITION

[25] For the foregoing reasons, the application is dismissed.

Justice P.A. Schreck

Released: February 10, 2016