Court Information

Ontario Court of Justice Central West (Brampton)

Date: April 7, 2017

Parties

Between:

Her Majesty the Queen

— And —

Stephen Romaniuk

Before the Court

Justice: P.T. O'Marra

Heard: February 28, 2017

Ruling on Charter Application Released: April 7, 2017

Counsel

For the Crown: Gursharn Gill

For the Defendant Stephen Romaniuk: Harvel Bassi

Decision

P.T. O'MARRA J.:

Introduction

[1] On March 19, 2015 the Applicant, Stephen Romaniuk was charged that he "did without reasonable excuse fail to comply with a demand made to him by P.C. Naqvi, a peace officer, under s. 254(2)(b) of the Criminal Code to provide forthwith a sample of his breath as in the opinion of P.C. Naqvi was necessary to enable a proper analysis of his breath to be made by means of an approved screening device".

[2] At the outset of the trial, counsel for the Applicant brought an oral Charter application without notice in which he alleged that the Applicant's rights were infringed under sections 9 and 10(b) during an investigation into a single car collision on Joan Drive, in the City of Mississauga. Ms. Gill, on behalf of the Crown did not oppose the introduction of the Charter application, and a blended voir dire was commenced to deal with the merits of the application. At the end of the voir dire, Mr. Bassi withdrew his argument that the Applicant's right to counsel had been violated.

[3] While preparing my reasons for this Charter ruling, I invited both counsel to address me on April 7, 2017 on whether or not section 8 of the Charter had been violated as a result the handcuffing. And if I found a breach, should the evidence obtained afterwards, specifically the efforts to provide samples of breath, be excluded under section 24(2)?

[4] I am, therefore, left to determine the following issues:

[5] Was the warrantless seizures of the Applicant's breath carried out in an unreasonable manner by P.C. Naqvi, contrary to section 8 of the Charter?

[6] Did the manner in which the detention occur become arbitrary when P.C. Naqvi handcuffed the Applicant before he administered the screening device, contrary to section 9 of the Charter?

Factual Background

[7] On March 19, 2015 at approximately 1:15 am P.C. Naqvi was on uniform patrol in the area of "&Company" a nightclub/bar located at 295 Enfield Place, in the City of Mississauga when he heard the loud revving of a car engine. He followed a white Mercedes Benz driven by the Applicant on Kariya Drive. The Applicant turned westbound onto Elm Street and then made a right hand turn at Joan Drive. At this point, the Applicant lost control of his car and drove onto the front lawn of a residence located at 3538 Joan Drive. The car was stuck in the mud and the tires were spinning.

[8] P.C. Naqvi pulled his cruiser behind the Applicant's car and called for back-up. He found the Applicant in the driver's seat. He was the lone occupant of the car. Based on the unexplained collision, a 'dazed' look and the faint smell of alcohol he formed a reasonable suspicion that the Applicant had alcohol in his body. At 1:17 or 1:18 am he walked the Applicant to his cruiser, handcuffed and placed him in the rear seat.

[9] At 1:18 am P.C. Naqvi gave the Applicant the Alcohol Screening Device demand, and told him that he could speak to a lawyer. He also cautioned him.

[10] While in the rear of P.C. Naqvi's cruiser the Applicant made eight (8) attempts to provide a suitable sample of his breath into the ASD. After the 2nd attempt the Applicant stated that the "handcuffs were too tight and that he had problems breathing". P.C. Naqvi removed the handcuffs which was approximately 5 minutes after he had put them on the Applicant. At 1:35 or 1:36 am P.C. Naqvi arrested the Applicant for failing to provide a roadside sample of his breath. He was formally read his right to counsel, cautioned and was subsequently released from the scene by an Appearance Notice.

The Evidence

P.C. Naqvi's Testimony

[11] P.C. Naqvi testified that after he came up to the Applicant's car he asked the Applicant for his driver's licence and to step out of the car. When the Applicant stepped out of the car P.C. Naqvi felt that the Applicant had a "dazed look". He asked the Applicant if he was injured or if he required an ambulance. The Applicant stated that he was not injured. P.C. Naqvi detected a "faint smell" of alcohol. He also observed that the Applicant did not slur his speech.

[12] P.C. Naqvi eventually brought the Applicant to his cruiser which was a "more secure area" which allowed him to have "more of a controlled environment for a conversation".

[13] Given his suspicion, P.C. Naqvi advised the Applicant that he was no longer investigating a motor vehicle collision but a Criminal Code offence of "drunk driving". As the Applicant was being assisted into the rear of the cruiser he handcuffed the Applicant.

[14] Once placed in the cruiser and handcuffed at 1:16 or 1:17 am P.C Naqvi gave the Applicant his right to counsel before he cautioned him and made the ASD demand. The officer acknowledged that he did not read verbatim the right to counsel to the Applicant but gave him an 'informal' right to counsel. He told the Applicant that he could speak to a lawyer if he needed too. In cross-examination, P.C. Naqvi agreed that he did not have to provide the Applicant any right to counsel at this stage of his investigation as the right to counsel was suspended. In his words, the "forthwith" nature of the breath demand "superseded or trumped" the Applicant's right to speak to counsel. He also agreed that by doing so he may have misled the Applicant by giving him the impression that he could have spoken to legal counsel before the tests. In hindsight, it was his belief that he was erring on the side of caution.

[15] At the time of this investigation, P.C. Naqvi had been a Peel Regional police officer since 2011 and had investigated approximately fifteen (15) drinking and driving cases. He admitted that he usually handcuffs individuals that he is investigating that may have committed drinking and driving offences. He stated that in the past when he thought that the person was a threat he would handcuff that individual. On this occasion he justified handcuffing the Applicant under the rubric of "officer safety". He felt that there were a lot of "unknowns" about what he was investigating and that his back-up had not arrived at the point in time that he handcuffed the Applicant. He also cited the neighbourhood as a reason to be concerned for his own safety. Specifically, he felt that his investigation was approximate to "&Company" where at this time in the early morning hours, bar patrons may have become involved and obstructed his investigation. He testified that it was a dimly lit area and people could be hiding.

[16] In cross-examination, P.C. Naqvi went so far to say that he was unsure if the Applicant was not the lone occupant at the time he was following the car. He felt that it was possible that during the "split second" that he had lost sight of the car, someone could have jumped out.

[17] In cross-examination, he conceded that although there is commonly pedestrian traffic around "&Company" at this time of night, there were not a lot of people in the area of the accident. Nevertheless, the officer was firm in his belief that he had valid officer safety concerns as the Applicant may have had an "unpredictable personality". In his opinion, the Applicant had a "dazed look" that may have been caused by drugs or alcohol. He stated another reason he felt a need to handcuff the Applicant was based on his professional experience in dealing with both patrons from this bar and others in this particular area of the City.

[18] In cross-examination, P.C. Naqvi testified that it is his normal practice in an investigation to handcuff any person that had just come from a bar and who had been in an accident. He acknowledged that in the past he has handcuffed people before administering an ASD. He qualified that statement stating that he would only do so if the person was "agitated" and "multiple parties were present".

[19] P.C. Naqvi stated that the Applicant was cooperative. When the Applicant requested that the handcuffs be loosened, he took them off because he was satisfied that the Applicant no longer posed a safety risk and the two other officers that were now present.

[20] P.C. Naqvi testified that it was possible that P.C. Haramis had arrived before 1:18 am. He had written in his note book that both P.C. Haramis and P.C. French arrived at 1:20 am which was after the Applicant's 2nd attempt at providing a sample of his breath.

[21] He described in detail eight (8) discreet attempts by the Applicant to provide a sample of his breath. For the purposes of this ruling I will not describe each one. However, as I have stated in paragraph 15 P.C. Naqvi did remove the handcuffs. The Applicant complained that they were too tight and that he was having problems breathing. He confirmed that the Applicant had been hand cuffed for "less than 5 minutes".

P.C. Haramis' Testimony

[22] P.C. Haramis is a member of the Peel Regional Police Regional Breath Unit. On this occasion he was conducting sobriety checks in the area of "&Company". At approximately 1:15 am he heard a radio call for an officer requiring assistance on Joan Drive. He arrived at the T-intersection of Elm Street and Joan Drive and observed the Applicant's car on a front lawn and partially on the roadway. He watched P.C. Naqvi escort the Applicant to his cruiser.

[23] At 1:18 am P.C. Haramis approached the Applicant and could smell alcohol on his breath. He testified that he was present when P.C. Naqvi made the breath demand and demonstrated the operation of the ASD. He also observed the Applicant attempt to provide samples of his breath. He estimated that he was present for the Applicant making five (5) attempts at providing a sample of his breath into the ASD. He stepped away for a moment. Upon his return he heard the Applicant complain about his position in the back seat. He assisted in adjusting his position to make him more comfortable. The Applicant made further attempts at providing a sample. He claimed that he never heard the Applicant complain about any injuries or difficulty breathing. The Applicant was charged at 1:35 am.

[24] In cross-examination, P.C. Haramis agreed that the location of the accident was more than 200 metres away but less than a half a kilometre away from "&Company". In his opinion the accident was not close to the club. There was minimal pedestrian traffic in the area as well.

[25] At the time he received the request for a '78' also known as a call for 'officer assistance' he was probably near the front door of the club. He confirmed that the traffic in the area of Elm Street and Highway #10 was light but was more congested on Enfield Place. He testified that "&Company" was always a concern as there have been over capacity issues and he was aware that a gun had been seized in the vicinity in the past.

[26] When P.C. Haramis arrived he did not feel there were any security or safety issues. He was not concerned about any civilians getting involved in the investigation and he certainly was not concerned about any member of the public "popping out of the bushes".

[27] P.C. Haramis believed that the Applicant was in fact handcuffed in the cruiser since he saw P.C. Naqvi place the ASD into the Applicant's mouth in order for him to provide a sample of his breath. He was not aware of any reason why the Applicant had to be handcuffed as there were no safety concerns. He agreed in cross-examination that it is unusual for handcuffs to be applied during an ASD demand.

P.C. French's Testimony

[28] P.C. French described his role as providing 'officer safety'. At 1:17 am he was in the Square One area when he heard P.C. Naqvi's call for officer back-up. He arrived at the collision scene within a minute.

[29] P.C. French described the area of the collision as a quiet residential neighbourhood.

[30] When he arrived the Applicant was in the rear of P.C. Naqvi's cruiser. He was uncertain if the Applicant was handcuffed.

[31] P.C. French was present when P.C. Naqvi made the breath demand and how he demonstrated the proper operation of the ASD to the Applicant. He stood by and watched the Applicant attempt to provide a sample of his breath. He felt that the Applicant was not making a genuine attempt at providing a sample.

[32] He was unsure why P.C. Naqvi needed officer assistance but found it unusual that he failed to indicate in the request that there was no rush to respond which he had a reputation for saying, if the circumstances were not serious. In cross-examination, he testified that from his perspective there were no officer safety concerns since he was the 3rd officer to arrive on the scene.

[33] He testified that in his opinion there should be no need to handcuff a person that is seated in the rear of the cruiser unless they are aggressive or he has information that the individual poses a safety risk.

Sections 8 and 9 of the Charter: Arbitrariness and Reasonableness of the Handcuffing

[34] Section 8 of the Charter states that "everyone has the right to be secure against unreasonable search or seizure".

[35] Section 9 of the Charter states that "everyone has the right not to be arbitrarily detained or imprisoned".

[36] The Applicant argues that P.C. Naqvi did not have lawful authority to handcuff the Applicant while he was detained. If I find that this constitutes a breach of sections 8 and/or 9 then the demand pursuant to section 254(2) is invalid. Alternatively, if I do not find that the demand is invalid then I should exclude the evidence that was gathered. Although not specifically addressed I surmise that counsel would like me to exclude the failed attempts of providing a breath sample into the ASD at the roadside.

[37] The Crown does not concede that a breach occurred. The Applicant was only handcuffed for a brief period of time and his liberty interests were only mildly affected. However, the Crown did not vigorously argue that the handcuffing was 'reasonably necessary' in the circumstances. In other words, it seemed doubtful that P.C. Naqvi had a bones fides concern for his safety when he handcuffed the Applicant.

[38] It is clear from the evidence that P.C. Naqvi formed a reasonable suspicion that the Applicant had alcohol in his body within the last 3 hours of operating his car and had the legal right to detain the Applicant for the purposes of complying with his demand pursuant to s. 254(2) of the Criminal Code.

[39] He made it clear to the Applicant that he was transitioning from a motor vehicle collision investigation to a criminal investigation of a "drunk driver offence". He admitted that before placing the Applicant into his cruiser he handcuffed his hands to the rear. He provided the Applicant with cursory forms of the right to counsel and caution. Upon reflection P.C. Naqvi acknowledged that the right to counsel was not necessary at this stage as the Applicant was not under arrest and the right to counsel was suspended. In these circumstances, an accused's section 10 Charter rights are suspended: see R. v. Grant, [1991] 3 S.C.R. 139. The Courts have long held that s. 254(2) is a reasonable limit on an accused's right to counsel, saved by s. 1 of the Charter: See R. v. Thomsen, [1988] 1 S.C.R. 640.

[40] The disturbing aspect of the investigative detention was that the Applicant was handcuffed. He was not under arrest for any criminal offence. P.C. Naqvi testified that he handcuffed the Applicant under the rubric of "officer safety". I am left with the distinct impression from P.C. Naqvi's evidence that in most cases involving the application of the ASD in the past, P.C. Naqvi routinely would handcuff the subject before he conducted the test. It may have been a subjectively held belief that his safety may have been at risk in these circumstances but that belief must be reasonably held.

[41] In order to assess the reasonableness of P.C. Naqvi's belief that it was necessary to handcuff the Applicant in these circumstances, I must examine the factors he took into consideration:

• The Applicant had been drinking.
• This was a criminal investigation.
• The investigation took place in close proximity to the "&Company" night club.
• There were a lot of "unknowns".
• He felt that it was not a safe environment.
• There could be other people in the area that had been consuming alcohol and drugs.
• The area was poorly lit.
• There was a lot activity around the "&Company" night club.
• In his experience "some routine matters have escalated and with alcohol they would act out".
• He was not sure that when he lost sight of the car for a "split second" that someone may have opened up the door and fled.
• The Applicant may have had an unpredictable personality.
• That evening he would have handcuffed anyone who had been at "&Company" and involved in a car accident.
• The police back-up had not arrived.

[42] To assess the reasonableness of these factors, it is also important to examine the testimony of P.C. Haramis and P.C. French. Both officers testified that they did not have any safety concerns with the Applicant.

[43] According to P.C. Haramis he arrived even before the Applicant was handcuffed. P.C. Haramis also testified that he received the call for back-up at 1:15 am and had arrived within two or three minutes. Upon his arrival he watched P.C. Naqvi escort the Applicant to his cruiser. P.C. Haramis was present when P.C. Naqvi demonstrated the ASD to the Applicant while the cruiser door was open.

[44] P.C. French testified that he was on scene at 1:17 am. Since both officers were present within minutes I fail to see how the Applicant was a safety risk. After all, the back-up requested had arrived before the Applicant was handcuffed. In cross-examination, P.C. Haramis testified that he saw the Applicant out of his car not handcuffed, and did not understand what circumstances had changed that warranted handcuffing.

[45] In cross examination, both officers essentially agreed that the location of the investigation was in a quiet residential area with very little vehicular and pedestrian traffic. P.C. Haramis agreed that he did not have any concerns about "people popping out of the bushes". P.C. French agreed that it was unlikely that anyone coming out of "&Company" would interfere in the investigation.

[46] Both officers testified that in their opinion it would be unusual for a police officer to handcuff a person during a roadside screening test, unless of course, that person was aggressive or threatening. There is no evidence that the Applicant was anything less than cooperative and compliant with P.C. Naqvi when brought to his cruiser.

[47] I find that P.C. Naqvi's safety's concerns were exaggerated and without foundation. I also believe that P.C. Naqvi's inexperience and lack of training were factors in forming his belief that handcuffing the Applicant was necessary in these circumstances.

[48] It is my understanding that although the Applicant was handcuffed at 1:17 or 1:18 am for approximately 5 minutes he was not imprisoned inside the cruiser to the extent that he was kept inside with the door closed. However, had the Applicant not requested that the handcuffs be loosened after the second attempt (at which time the handcuffs were removed), he may have remained with the handcuffs on at 1:35 or 1:36 am when he made his 8th attempt at providing a sample.

[49] There is only one aspect to the Applicant's detention relevant to the voir dire in this matter: Was the manner in which the detention carried out lawful? If it was not lawful, it was arbitrary: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paragraph 24.

[50] In the recent decision of R. v. Campbell [2016] O.J. No. 2136 Justice Nakatsuru found there was a 'minor' breach of section 9 when an officer attempted (emphasis is mine) to handcuff a detainee before conducting a pat down search. In reviewing cases involving handcuffing for 'safety reasons' she went on to say at paragraph 122,

Where the purported reason for handcuffing a detainee was for officer safety reasons, the handcuffing was arbitrary if the foundation for that belief was lacking. Similarly, if the detainee remained handcuffed longer than reasonably necessary to alleviate concerns for officer safety, this again supported a finding that the detention was arbitrary: see R. v. Vulic (2012), 2012 SKQB 221, 397 Sask. R. 235 (Q.B.) at paras. 21-23; R. v. Wong (2009), 2009 BCPC 89, 191 C.R.R. (2d) 156 (B.C. Prov. Ct.) at paras. 42-43.

[51] At paragraph 128 Justice Nakatsuru cites Doherty J.A. comments in the decision of R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) in what constitutes investigative detention. I find them instructive as well when it comes to assessing the manner of the detention:

A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation.

[52] Handcuffing should not be readily resorted to. It should not be done as a policy reason or a regular practice. Any handcuffing before an arrest must be objectively assessed. The subjective belief by any officer about safety concerns even if based upon experience, will not suffice: See Campbell, supra. at paragraph 128.

[53] Accordingly, I find that in these particular circumstances and based on the evidence in the voir dire the Applicant was unlawfully handcuffed by P.C. Naqvi. As such, the Applicant was arbitrarily detained contrary to section 9 of the Charter. Furthermore, the taking of a breath sample at the roadside was a form of a warrantless search. In my opinion, the search violated section 8 of the Charter because it was conducted in an unreasonable manner, that is because the Applicant was handcuffed for no good reason: See R. v. Collins, (1987), 33 C.C.C. (3d) 1 at 12 (S.C.C.)

Section 24(2) of the Charter: The Remedy

[54] According to Grant, supra. I must examine three factors in order to assess whether the admission of the evidence gathered in breach of the Charter would bring the administration of justice into disrepute.

The Seriousness of the Charter-Infringing Conduct

[55] I find the breaches of sections 8 and 9 far from minor breaches. The Applicant was handcuffed in the rear of a police cruiser for a matter of minutes and not seconds. The handcuffing took place at the outset of the investigation and not after a lawful arrest. I appreciate that once the safety concern had abated P.C. Naqvi uncuffed the Applicant. However, had he not been told by the Applicant that they were too tight and he had difficulty breathing, I am convinced that the handcuffs would have remained on for an indeterminate period of time.

[56] I am mindful that Charter applications must be assessed based upon what did happen and not what would have happened: See R. v. Clayton and Farmer, 2007 SCC 32, [2007] 2 S.C.R. 725 para. 480. Nevertheless, P.C. Naqvi left me with a very clear impression that it is his usual practice to handcuff most suspects, if not all suspects at the outset of an ASD investigation. It is a practice that the Court should not condone. The officer was reckless in his approach in detaining the Applicant in his cruiser in the manner in which he did.

[57] It may be argued that the P.C. Naqvi was acting in good faith. Good faith has been defined to mean where police make an honest a nd reasonable error regarding the scope of their legal authority. I cannot accept that P.C. Naqvi committed an honest and reasonable error; rather I believe that he acted in ignorance of the law on arbitrary detention. But even if I am wrong in my assessment of what constitutes good faith, the Supreme Court has made it clear in Grant, supra at para. 76 that "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". As Justice Stribopoulos stated in the case of R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789 at para. 54 while citing the Supreme Court in Grant at para. 133, "[t]his is because the police are rightly expected to know what the law is".

[58] As I have stated previously P.C. Naqvi's decision to handcuff the Applicant was twofold: He had an erroneous belief that his safety could be in jeopardy and that it was his usual practice. Both reasons are at odds with each other. It stands to reason that it is either one or the other: officer safety or his normal practice. Regardless, I am sceptical of the former and alarmed at the latter.

[59] The latter reason is particularly aggravating as it is reflective of his pattern of past behavior. As the Supreme Court stated in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 25 "evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion."

[60] After Grant and Harrison, the case law makes clear that a police officer's understanding of his /her legal authority is a relevant consideration: See R. v. Ashmore, [2011] BCCA 18 at para. 109; and R. v. Voong, [2013] BCCA 527 at paras. 92-98.

[61] For these reasons the infringing state conduct militates towards exclusion of the road side screening evidence.

The Seriousness of the Impact on the Charter-Protected Interests on the Accused

[62] The handcuffing of the Applicant had a serious impact on his liberty interests and dignity. Handcuffing is a police 'use of force' option that on the use of force model must be used only if it is warranted when an officer's safety is at risk. P.C. Naqvi had an unfounded belief of potential 'interpersonal violence' that at the moment in time of handcuffing trumped the Applicant's dignity and freedoms.

[63] In my opinion, the violations of the Applicant's section 8 and 9 Charter rights were both temporally and causally connected to his failure to provide an adequate breath sample. I am not entirely certain that the discomfort experienced by the Applicant played a role in the six (6) subsequent attempts after the handcuffs were removed, but it may have. Nevertheless, the tightness of the handcuffs did cause him discomfort to the point that he complained and the pain had an impact on his breathing. In my view, the impact of the breaches were relatively serious and therefore, this factor favours exclusion.

Society's Interest in the Adjudication on the Merits

[64] The Applicant's eight (8) attempts to provide a suitable breath sample at the roadside is reliable and probative evidence which is essential to the determination of the case on its merits. I am mindful of the seriousness of the case, the reliability of the evidence and its importance.

[65] Drinking and driving has potentially deadly and life altering consequences. The carnage that it creates is a scourge to our society: See R. v. Bernshaw, [1995] 1 S.C.R. 254.

[66] I am aware of the fact that the seriousness of the offence should not take on a disproportionate significance. See Harrison, supra.

[67] The exclusion of the failure to provide an adequate sample will be fatal to the Crown's case. However, the failure may never have occurred had the Applicant not been handcuffed.

Conclusion

[68] In this case and in these particular circumstances, taking into consideration the three factors that I have outlined, it is my view that in order to best serve the long-term repute of the administration of justice the evidence is excluded. As a result, the charge is dismissed.

Released: April 7, 2017

Signed: Justice P.T. O'Marra