Court File and Parties

Ontario Court of Justice

Date: January 31, 2017

Court File No.: Region of Durham 998 15 34707

Between:

Her Majesty the Queen

— and —

Parmdeo Deodat

Before: Justice J. De Filippis

Heard on: November 23, 2016 & January 5, 2017

Reasons for Judgment released on: January 31, 2017

Counsel:

• Mr. I. Skelton, counsel for the Crown
• Mr. M. Herman, counsel for the defendant

De Filippis J.:

Introduction

[1] The defendant was charged with having a blood alcohol level that exceeded the legal limit at a time that he was in care or control of a motor vehicle. The defendant argued that the charge should be stayed or the evidence excluded, pursuant to section 24 of the Charter of Rights and Freedoms, because the police violated his rights as set out in sections 8, 9, and 10(a). Moreover, it is asserted that even if these are not "gross breaches in themselves", taken together they support the remedy sought. To succeed the defendant must prove this claim on a balance of probabilities (although the Crown bears the onus of establishing that a warrantless search was otherwise lawful and reasonable). The only issue at trial is the admissibility of the evidence subject to the Charter motion. That the evidence, if admissible, must result in a finding of guilt is not controversial.

Evidence

[2] Ms. Videshari Demattos is 38 years old and a "good friend" of the defendant. She testified that on September 1, 2015 the defendant had driven her to Ajax. She lives in this town and they had stopped at a McDonald's Restaurant. While there, they argued and she called 911. She said she could not recall why she contacted the police and explained that she was under the influence of alcohol at the time. Other evidence shows that this witness called 911 more than once and provided detailed information.

[3] P.C. Richards testified that on the date in question at 9:26 p.m. he was on general patrol, with his partner, P.C. Campbell, in uniform and in a marked police car. The officers were dispatched to the area of Taunton Road West and Ravenscroft Rd. for a possible impaired driver because of information received from Videshari Demattos in a 911 call made by her. The dispatcher informed P.C. Richards that Ms. Demattos had reported a confrontation with the defendant and that he had driven away from her location in a 1996 Dodge Minivan. The officer was also told that she described the defendant as "violent drunk". With further dispatches from the complainant and the assistance of a police plane, these officers found the defendant in a parking lot at Westney Heights Baptist Church. They arrived at 9:38 p.m. The defendant was alone, seated in the driver's seat of a 1996 Dodge Minivan.

[4] P.C. Richards approached the driver's side door and spoke to the defendant. The driver's side window was down and the officer detected a slight odour of alcohol on the defendant's breath. P.C. Richards asked for his driver's licence, insurance card and ownership slip but the defendant could not locate the documents. The defendant complied with a request that he step out of the vehicle and in response to a question about whether he had consumed alcohol, responded, "four beers". The officer explained that he "wanted [the defendant] away from the vehicle to check sobriety and for officer safety, as he had received information the man was violent and drunk". He agreed that he did not immediately explain to the defendant why he detained him for investigation.

[5] At 9:40 PM, having regard to the odour of alcohol emanating from the defendant's mouth and the admission of consumption, P.C. Richards read the approved screening device demand (ASD) to the defendant. The latter said he understood and the device in question was given to him, following an explanation about how to use it. At 9:42 PM, the defendant provided a suitable sample of his breath and registered a "fail". P.C. Richards testified that such a result indicates a blood alcohol level over the legal limit. At 9:44 PM, he arrested the defendant for the offence before the court, handcuffed, and placed in the cruiser. At 9:45 PM, he was read his right to counsel and responded that he understood. P.C. Richards then read the "breath demand" to the defendant. The latter initially answered that he wanted a blood sample taken and eventually understood that he would provide a sample of his breath into an instrument.

[6] The aforementioned times are not what were originally recorded in the notes made by P.C. Richards. Those notes record an ASD demand and fail at 9:40 and an arrest at 9:51. The officer placed an entry in his Arrest Report that he had adjusted his duty book with respect to the arrest, right to counsel, caution, and breath demand to match the call card times. He testified that he had used his watch for his initial entries and his watch had displayed the incorrect time. When he later checked the call card, he adjusted the times accordingly.

[7] The defendant was taken to the nearest police station. En route he began to hyperventilate and asked that his hand cuffs be loosened. P.C. Richards and his partner stopped so that this could be done. On arrival at the station, the defendant refused to leave the cruiser and had to be pulled out of it by the two officers. He was taken to the cell area. He asked for a bottle of water but when one was produced, he refused to take it.

[8] After the defendant had spoken privately with duty counsel, he was turned over to a qualified intoxilyzer technician. He provided two suitable samples of his breath into an approved instrument at 11:02 PM and 11:26 PM. He registered readings of 100 and 90 (milligrams of alcohol in 100 millilitres of blood).

Analysis

[9] The section 8 Charter argument is grounded in the assertion that P.C. Richards did not have reasonable and probable grounds to arrest the defendant and failed to make proper breath demand pursuant to s. 254(3) of the Criminal Code. With respect to the latter, I was asked to consider R v Lester 2015 SKQB 53 at paras 36-37:

Having considered carefully the transcript of the evidence of Cst. Dechief presented in the course of the voir dire, I cannot find any evidence to support the Trial Judge's conclusion that in the 12 minute interval after the ASD test was completed and before Mr. Lester was arrested and the breathalyzer demand made and rights read, that Cst. Dechief was preoccupied with securing the scene, or making it safe for travellers by having the vehicle moved or generally ensuring safety and dealing with the sole passenger in Mr. Lester's vehicle. There was no valid reason to delay making the breathalyzer demand after obtaining a "Fail" reading on the ASD. Cst. Dechief should have complied with the requirements of the Criminal Code and proceeded immediately, as is usually the case, to place the driver under arrest, and make the demand. He was also obligated to comply with the Charter provisions by promptly informing the driver why he was going to be detained further or placed under arrest, and he should have informed him promptly of his right to counsel.

In the circumstances, I find that there was a breach of Mr. Lester's s.8 right to be secure against unreasonable search or seizure because the demand under ss. 254(3) was not a lawful demand. I also find that Mr. Lester's right not to be arbitrarily detained was breached after his detention under ss. 254(2) had lapsed. In addition, I also find that there was a breach of Mr. Lester's s. 10 Charter right to be informed promptly of the reason for his arrest or detention and the right to instruct counsel without delay in the 12 minute interval after the "Fail" reading on the ASD. This ground of appeal is meritorious. As a result, a s. 24 analysis must be made to determine what remedy, if any, Mr. Lester might be entitled to.

[10] The analysis in Lester is relevant if the original times noted by P.C. Richards are correct. He has explained why he altered those notes to reflect and account for the brief delay between the ASD result and arrest. I accept his testimony. I am confident he is being truthful about this point and that there was not an 11 minute delay. I also find the officer had the requisite authority to arrest.

[11] In order to have valid grounds to arrest and make a demand for his breath pursuant to s. 254(3) of the Criminal Code, an officer must subjectively have reasonable and probable grounds to make the arrest, and those subjective grounds must be justifiable from an objective point of view. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest. "Reasonable grounds" is more than a suspicion, but does not require the police to establish a prima facie case for conviction. The standard is met at the point where credibly-based probability replaces suspicion. See R v Bush, 2010 ONCA 554 at paras 35-53 and R v Wu, 2015 ONCA 667 at paras 49-52.

[12] In this case, P.C. Richards received information about a complaint involving a person who was described as violent, drunk and driving erratically. He and his partner located the vehicle in a church parking lot. The officer walked to it and saw the defendant in the driver's seat, with the engine still running. He detected the odour of an alcoholic beverage on the defendant's breath and, when he asked if he had been drinking, was told about the consumption of four beers that evening. This amply supported the officer's reasonable suspicion that the defendant had alcohol in his body and while operating a motor vehicle and justified the ASD demand pursuant to section 254(2)(b) of the Code. There is no dispute that a "fail" on such a test constitutes reasonable and probable grounds to arrest and make the section 253 approved instrument breath demand. P.C. Richards subjectively believed he had these grounds and I find his belief to be objectively reasonable.

[13] The Defence argued that P.C. Richards had no right to detain the defendant and direct that he leave his motor vehicle and this violated section 9 of the Charter. It is also asserted that the officer acted improperly by making and executing the ASD demand in the cruiser. The officer said this was his practice because of safety and security concerns. In my view, the officer's practice is a good one and does not offend the Charter.

[14] Section 9 was not breached in this case. P.C. Richards had the right to detain the defendant and investigate him pursuant to the Highway Traffic Act. Section 216(1) gives a police officer the power to stop a motor vehicle in the lawful execution of his or her duties. Further under section 48, a police officer may require a motor vehicle to stop for the purpose of determining whether there are grounds to justify a demand for a breath sample under s. 254 of the Code. Should reasonable grounds exist to believe that a person is committing, or within the last 3 hours has committed an offence under s. 253 of the Code, under s. 254(3) permits a police officer to demand that this person provide samples of his or her breath that will enable a qualified technician to determine the quantity of alcohol in his or her blood. In such circumstances s. 254(3)(b) gives a police officer the power to require the person to accompany him or her for the purpose of providing such samples if necessary.

[15] The final Charter challenge is based on the alleged failure of P.C. Richards to comply with section 10(a). In R v Nguyen 2008 ONCA 49, at para 21, it was noted that:

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

Similarly, in R v Orbanski, (2005) 1996 C.C.C. (3d) 481 (SCC) at para 31, Justice Charron commented that "I suspect every motorist would fully expect to be informed promptly of the reasons why he or she is being stopped."

[16] Section 10(a) does not depend on a particular formula. What is required is that the person detained or arrested understands the reasons therefore. This may be made clear by a verbal explanation or because of the circumstances of the case. In this regard, R v Kumarasamy, [2011] O.J. No. 2114 S.C.J.O is instructive.

[17] The court in Kumarasamy found that the reason for the initial traffic stop had been to investigate the respondent's unsafe driving, which included the possibility that alcohol was involved. The officer did not tell the detainee this but the court found that given the time of the traffic stop, the obvious odour of alcohol within the vehicle, the erratic driving, and the officer's question regarding alcohol consumption, it had to be obvious why he was being detained. In these circumstances, it was held that the trial judge erred in law in concluding that s. 10(a) was violated when the officer simply directed the accused to step out of the car.

[18] In R. v. Wackernagel [2004] O.J. No. 5543 S.C.J.O (S.C.A.) at paragraph 34, Justice Hill considered section 10(a) in the context of detention and drinking and driving investigations. He noted that:

Once the A.S.D. demand is made, the s. 48 H.T.A. authority is "spent" (R. v. Smith, supra at 283) as the Hufsky detention becomes a s. 254(2) detention. In other words, once the officer is in a position to make the demand, the detaining authority of the provincial authority is replaced with the detention authorized by s. 254(2) of the Code and, to fulfil the s. 10(a) Charter right, the detainee should be advised of the reason for continued detention generally by communication of the s. 254(2) demand or its substantial equivalent. While generally a detainee should be provided all reasons for his or her detention (R. v. Sawatsky (1997), 118 C.C.C. (3d) 17 (Ont. C.A.) at para. 29), in certain cases, where a single ongoing transaction proceeds very quickly from one form of detention to another it may not be appropriate "to test compliance with the Charter at each discrete stage of the encounter" between police officer and detained individual: R. v. Paryniuk (1996), 95 O.A.C. 220 (C.A.) at 220.

[19] In the present case, the events leading to the defendant's ultimate arrest proceeded quickly. P.C. Richards approached the defendant, who occupied the driver's seat of motor vehicle. Having requested the production of documents and detected an odour of alcohol from the defendant, he told him to step out of the vehicle and asked if he had been drinking. The defendant replied he had had four beers. P.C. Richards then made the ASD demand and directed the defendant to the rear of the police cruiser for the test to be conducted. In these circumstances, I have no doubt the defendant understood why he was being detained. There is no other evidence before me to suggest he was confused or uncertain about what was happening to him.

[20] The defendant has not persuaded me that his rights under sections 9 and 10(a) of the Charter were infringed. I also find that his section 8 rights were respected by the police. Accordingly, the impugned evidence is admissible and the defendant is found guilty as charged.

Released: January 31, 2017

Signed: "Justice De Filippis"