Court Information

Date: April 20, 2017

Information No.: N14-4119

Ontario Court of Justice (at St. Catharines, Ontario)

Parties

Between:

Her Majesty the Queen

• and -

Thomas Michael Cowan

Counsel

Mr. A. Brown, for the Crown

Mr. A. Fazari, for Mr. Cowan

Reasons for Judgment on Charter Applications

in an impaired driving and over 80 trial

NADEL, J.:

Introduction

[1] Thomas Michael Cowan, [Cowan,] is charged with impaired driving and over 80.[^1] He alleges several breaches of his Charter rights, including:

(i) a s. 7 breach for being compelled to make admissions that provided the grounds for his arrest on the impaired driving charge;

(ii) a s. 8 breach for being subjected to an unreasonable search and a s. 8 breach for being subjected to an unreasonable seizure of these incriminating admissions;

(iii) a s. 9 breach for being arbitrarily detained by the arresting officer; and,

(iv) a s. 10(a) breach for not being informed promptly of the reasons for his arrest.

[2] These are the essential facts leading to Cowan's arrest. A male driver was followed by David Hitchcock, [Hitchcock,] and his spouse while they were traveling on the QEW. Hitchcock called 9-1-1 to report that the driver might possibly be impaired by alcohol. Niagara Regional Police Officer Matthew Sigfrid, [Sigfrid,] was dispatched to respond to Hitchcock's complaint. Hitchcock followed the driver to the lot of a massage parlour called "Vibrations." The driver got out of his vehicle, urinated in public view, and then entered Vibrations. Sigfrid attended, received some information from Hitchcock and entered Vibrations. He located Cowan in a massage room where he found Cowan naked and lying face-down on a massage table with a towel draped over his buttocks. Sigfrid interrogated Cowan, directed him to get dressed, confirmed his identity and arrested him for impaired driving.

The S. 7 Compelled Statements Allegation

[3] Cowan is a car salesman. He is licensed under OMVIC, (the Ontario Motor Vehicle Industry Council,) and is familiar with the Highway Traffic Act. The position of the defence was that Cowan knew of his obligations to comply with s. 199 and/or s. 200 of the Highway Traffic Act. The defence submitted that as a consequence of that knowledge Cowan's admissions to Sigfrid amounted to compelled statements even though there was no accident that had to be reported. In my view, there is no merit to the s. 7 Charter allegation that Cowan's admissions were statutorily compelled. That application is dismissed.

The S. 10(a) Complaint

[4] During submissions the defendant did not pursue the submission that Sigfrid failed to comply with s. 10(a) and the defence formally withdrew the allegation of any s. 10(a) breach.

The S. 9 Complaint

[5] The defendant submits that Cowan's detention by Sigfrid was arbitrary "because the tip (sic) did not, in law, provide reasonable grounds to believe that the applicant had committed the offence or was the driver of the vehicle. In the absence of reasonable grounds, the arrest was not authorized by s. 495(1) of the Criminal Code and was, therefore, arbitrary because it was not authorized by law."[^2]

[6] I disagree that there was any breach of s. 9. When Sigrid first encountered Cowan, Sigfrid had reasonable grounds to suspect that Cowan was the male who Hitchcock had just seen entering Vibrations. Sigfrid also had reasonable grounds to suspect that that male had committed the offence of driving a motor vehicle while his ability to do so was impaired by alcohol. Sigfrid was entitled to rely and act upon the information that he had received before encountering Cowan; namely:

• that a possibly impaired driver was being followed by Hitchcock;
• that the driver was alone in the vehicle;
• that the vehicle was a white 2014 Ford F-150 registered to Solar Inc. on Ashworth Road in Mount Albert;
• that that vehicle was parked in the lot of Vibrations Massage;
• that the driver was a male;
• that Hitchcock had followed the driver to Vibrations;
• that the driver was all over the road, had almost driven into a guardrail and had been driving on the shoulder of the road;
• that the driver had urinated beside his vehicle; and,
• that the driver had just entered the massage parlour.

[7] These circumstances gave Sigrid reasonable cause to suspect that the male who had gone into the massage parlour was implicated in a criminal act of impaired driving that had just occurred. In my view, Sigrid was more than justified in pursuing an investigation of that male.[^3]

[8] Sigfrid was entitled to try to locate and investigate this male to determine if he had committed the offence of impaired driving.[^4]

[9] As Doherty J. observed at paragraph [15] of Simpson, "[i]f the detention is lawful, it is not arbitrary unless the law authorizing the detention is arbitrary. If the detention is found to be unlawful, that finding will play a central role in determining whether the detention is also arbitrary." In consequence, Sigfrid's initial actions in entering the massage parlour to locate and investigate the male were authorized by law and not arbitrary. Hence, there was no violation of s. 9 of the Charter when he first encountered Cowan.

[10] By way of anticipation, (and appreciating that I am placing the cart before the horse,) for reasons that I shall detail, Sigfrid "investigatively detained" Cowan upon encountering him. I am of the view that this finding is a conclusion that is based upon an objective assessment of the circumstances of Sigfrid's encounter with Cowan.

The Facts Underpinning the S. 8 Search Complaint

[11] Sigfrid was dispatched to Vibrations at 3:51 p.m. He arrived there at 3:58 p.m. and almost immediately entered the premises after very briefly communicating with Hitchcock and his spouse about where the male driver went. They indicated to him that the male had gone into the massage parlour.

[12] There are conflicts between the evidence of Cowan and Sigfrid about some aspects of the layout of the massage parlour. In my view, I need not resolve those conflicts in order to adjudicate this Charter complaint.

[13] Regardless of whether Cowan was actually seeking a therapeutic massage that he was content to receive from a masseuse of either sex, as he testified to, or whether he was really seeking sexual gratification from a woman, (which is the inference I would draw if I was obliged to resolve the question,) both Cowan and Sigfrid are agreed about the following facts:

• there were only two female employees who were seen by Cowan and Sigfrid;
• there were only four rooms off the interior hallway (and both men assumed they were massage rooms);
• the hallway was very dark and the lights were very dim;
• the two men were only in room four and neither man looked into the other three rooms;
• no one other than the two men and the two female employees were seen on the premises;
• both Cowan first, and subsequently Sigfrid were led to room four by the woman working the counter;
• all of the rooms including room four had an opaque door that was closed;
• the woman working the counter opened the door to room four first for Cowan and subsequently for Sigfrid;
• the woman working the counter left room four after letting Cowan in;
• room four was quite small and very dimly lit;
• room four contained a massage table[^5] on the left-hand side of the room and a privacy screen at the back of the room;
• the head of the massage table was facing away from the door;
• neither Cowan nor Sigfrid looked behind the privacy screen to see what, if anything, might be there.

[14] Sigfrid said that when he entered Vibrations he asked the woman at the counter if a male had just come into the building. The woman said, "Yes" and told Sigfrid that the male was their only client. Sigfrid asked where he was and the woman led Sigfrid to room four. She stated that the male client was in room four and opened the door for Sigfrid. Sigfrid did not announce his presence and entered the room. A female in a bathrobe left the room when Sigfrid entered.

[15] Cowan said that he was led to room four and that it was unlocked for him by the woman working the counter. She then told him to remove his clothes and get on the table. He did so and covered his buttocks with a towel that was provided. As he did so a woman dressed in a bathrobe came out from behind the privacy screen and began to oil his back and commence to massage him. A minute or so later the door to room four was opened again and Cowan, looking down from the face-hole of the massage table, could see the shoes and uniform pants of a policeman in the room. The masseuse left immediately, leaving Cowan alone with a police officer.

[16] Sigfrid agreed that he found Cowan laying naked on the massage table with a towel covering his buttocks. Sigfrid agreed that a female in a bathrobe left the room when he entered it. Sigfrid also agreed that he then began to interrogate Cowan.

The S. 8 Complaints of an Unreasonable Search and an Unreasonable Seizure

[17] The defence submits that Cowan had a reasonable expectation of privacy while he was naked in this massage room and that Sigfrid breached that reasonable expectation contrary to s. 8 of the Charter. Likewise, Sigfrid's interrogation of Cowan was unreasonable; that the answers that Cowan gave to Sigfrid were seized by Sigfrid in contravention of s. 8. The defence submits that on a s. 24(2) analysis these breaches of s. 8 ought to be remedied by the exclusion from evidence of Cowan's answers, of Sigrid's observations of Cowan's condition and of Cowan's breath testing results.

[18] The Crown responds that Cowan was there for a service. That, if truth be told, Cowan was there for sexual gratification; but, regardless of the nature of the service that Cowan was seeking, he was there seeking a service in a place that he had no control over whatsoever. He could not choose the particulars of the service provider such as the age or identity of the masseuse and he had no reasonable expectation of privacy in the provision of that service.

[19] Moreover, the Crown submits that there is a descending order of places immune from non-warranted police intrusion and that on anyone's list this massage room is or ought to be near the bottom. Finally, in the Crown's submission, when the indicia of a reasonable expectation of privacy as described in R. v. Edwards, [1996] S.C.J. No. 11 (S.C.C.) are applied to the facts, it cannot be concluded that Cowan had any reasonable expectation of privacy and hence there was no s. 8 Charter breach.

[20] It is apparent that the defence and the Crown each stress different criteria enunciated in Edwards.

[21] The Crown notes that Cowan had no control over or possession of the massage parlour or of the room he was assigned to; that Cowan held no ownership interest in the massage parlour; that by his own admission he had never been there before and therefore had no history of use of the place; and, that he had no ability to regulate access to the parlour or any room of it. The implication of the Crown's submission is that the employee who enjoyed at least some of these criteria was authorized to and did invite Sigfrid into the interior of the premises, brought Sigfrid to Cowan, opened the door to the massage room and impliedly but undeniably invited Sigfrid to enter it.

[22] The defence notes that Cowan was present at the time of this search; that Cowan had a subjective expectation of privacy while being massaged; and, that being naked, Cowan's subjective expectation of privacy was objectively reasonable. Moreover, being interrogated while naked clearly demonstrates that Sigfrid carried out his search in an unreasonable manner.[^6]

[23] In my view it is self-evident that Cowan had a reasonable expectation of privacy in this "massage" room. Whether he was really only expecting a therapeutic massage is irrelevant to that determination. Neither prostitution nor infidelity are crimes in Canada. Cowan's expectation of privacy while naked and lying on a massage table is of the same order as a patient in a doctor's examining room, a patient in a curtained-off triage stall in an emergency room, a patient in a dental chair or a patient on a registered massage therapist's table, etc., etc., etc. In my view Cowan reasonably expected that he would not be unreasonably disturbed or unreasonably intruded upon while he was being massaged. Hence, Sigfrid's entry into Cowan's massage room amounted to a search.

[24] Further, Cowan's answers to Sigfrid's questions amounted to a seizure by Sigfrid of the information provided by Cowan.[^7] A reasonable expectation of privacy does not necessarily end the analysis, since s. 8 only protects against "unreasonable" searches or seizures. The law does not preclude or prohibit all searches or seizures conducted without prior judicial authorization. The next questions, then, are (i) whether Sigfrid's search of the massage room was an unreasonable search; and, (ii) whether his seizure of incriminating answers from Cowan was an unreasonable seizure.

The S. 8 Unreasonable Search Allegation

[25] The first question, (whether Sigfrid's search of the massage room without a warrant was unreasonable,) must be answered in the negative. This was not an unreasonable search, despite not being authorized by a search warrant. The basis of that conclusion flows from a consideration of paragraphs [45] and [47] of R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49 (S.C.C.):[^8]

45 To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

47 The officers had reasonable grounds to detain the appellant. He closely matched the description of the suspect given by radio dispatch, and was only two or three blocks from the scene of the reported crime. These factors led the officers to reasonably suspect that the appellant was involved in recent criminal activity, and at the very least ought to be investigated further. …

[26] Sigfrid's efforts to locate the male driver by entering and hence searching the massage room was a reasonable warrantless search. It was based upon the same reasonable grounds that justified Sigfrid's investigation of Cowan. While Cowan had a reasonable expectation of privacy in the massage room, that reasonable expectation did not insulate him from every conceivable interference or interruption of it. Section 8 only protects against unreasonable searches or seizures and Sigfrid's search of the massage room by entering into it was a lawful exercise of his common law police powers. Moreover, he was invited to do so by an employee of the massage parlour, who, on the evidence, was authorized to permit him entry into that room, in any event.

The S. 8 Unreasonable Seizure Allegation

[27] Subsequent to Justice Doherty's judgment in Harris it is uncontroversial that the police "seize" information via interrogation. Section 8 protects citizens from "unreasonable" seizures. As I shall detail subsequently, Sigfrid detained Cowan for the purpose of investigating a complaint of impaired driving. Sigrid's decision to interrogate Cowan while Cowan was naked was unreasonable so that this seizure was carried out in an unreasonable fashion. It amounted to a breach of Cowan's right under s. 8 to be secure against unreasonable state seizures. That is so despite Cowan having had no objection to taking off his clothes to get a massage and despite the fact that Sigfrid's investigation did not constitute a strip search, (as he played no part in Cowan's clothes coming off.)

[28] The inappropriateness of questioning a detainee while that detainee is naked is brought into focus by reference to paragraph [90] of R. v. Golden, 2001 SCC 83, [2001] S.C.J. No. 81 (S.C.C.).[^9] This portion of Golden highlights the affront to a detainee's personal dignity brought about by state compulsion. In my view the commentary there compels the conclusion that Sigfrid's interrogation of Cowan while Cowan was naked amounted to an unreasonable exercise of state authority and a breach of s. 8's protection against unreasonable seizures.

[29] Accordingly, my conclusion that Sigfrid's search of the massage room did not breach Cowan's s. 8 Charter rights does not extend to Sigfrid's seizure of the incriminating answers that Cowan made while naked to a series of questions put to him by Sigfrid. That seizure of information was unreasonable and in breach of Cowan's s. 8 rights because of, inter alia, the unique circumstance posed by Cowan's nakedness during that interrogation.

[30] Relying upon Sigfrid's testimony, the following facts were apparent to him. He was brought to a small, dimly lit room. The door to that room was closed. Upon entering the room a female dressed only in a bathrobe quickly left through the room's only door. Sigfrid was then alone with Cowan. Sigfrid was fully dressed and armed in the standard police regalia of a Niagara Regional Police Service constable. Given the information available to Sigfrid, this naked male had to be the suspected impaired driver that Sigfrid was looking for. Further, by Sigfrid's admission, prior to interrogating the male, Sigfrid did not have reasonable and probable grounds to arrest the male.

[31] With those circumstances in mind, according to Sigfrid, the following investigation occurred. Sigfrid approached the male, identified himself as a policeman and asked the male why he was here and how he got here. Sigfrid also explained that there was a driving complaint of someone being all over the road, that he was investigating that complaint and that the person was possibly impaired.[^10] The male then sat up and they spoke, while Cowan remained naked, albeit he had the towel that originally covered his buttocks now draped across his lap, covering his genitals. The male told him that he had driven there. Sigfrid then asked how much he had to drink "tonight" (sic) and the man said, "Six beers." Sigfrid then asked if he drank anything at the spa and the man said, "No." Sigfrid then asked where he was coming from and where he had done his drinking. The man said he "came from Port Dalhousie" and that he came to Vibrations afterward. Sigfrid asked when he had had his last drink and the man said, "An hour beforehand." Sigfrid then asked him to assess his level of impairment on a scale of one to ten and the male said that he was "a six."

[32] Based upon that answer and from his observations of the man Sigfrid believed that he was impaired and that the effects of alcohol were obvious. Those observations included the smell of alcohol on the man's breath, that he belched during some of his answers, that his eyes were very watery, that his pupils were dilated, that his speech was slurred and that the male was swaying and stumbling as he put on his clothes. Subsequently, the male also fumbled, albeit quite briefly, through his documents moments before Sigfrid formally arrested him in the parking lot.

[33] Sigfrid asked the male for some identification and the male said that it was in his truck. At that point, Sigfrid asked him for his name and Cowan provided it. Sigfrid wanted to confirm that information so he asked Cowan to go and get it from the truck, "at which point he got dressed."

[34] Sigfrid told the male to go outside to talk and to get his identification. The two went out to the white truck in the lot and Cowan produced his driver's licence to Sigfrid, which confirmed Cowan's self-identification. Another officer was on scene when Sigfrid and Cowan came out of the massage parlour. That officer told Sigfrid that Hitchcock had advised her that Cowan was the man Hitchcock had been following who had gone into the massage parlour. Sigfrid then arrested Cowan for impaired driving at 4:15 p.m.

[35] By way of chronology, Sigfrid thought that he arrived at the massage parlour lot by about 3:51 p.m., that he entered Vibrations at about 3:53 p.m. and that he estimated that he had been in the massage room with Cowan for about eight or nine minutes.

Investigative Detention

[36] While Sigfrid did not specifically announce to Cowan that he was detaining him, I accept that Cowan felt that he was detained by Sigfrid. Cowan testified that he felt like he was under arrest. Cowan said that he believed he was in a private room and did not expect a police officer to enter it. He testified that he was startled when Sigfrid did so without knocking on the door and without announcing his presence as a police officer. Cowan said that he responded to Sigfrid's questions because he felt obliged to do so because Sigfrid was a police officer. [^11] He got dressed at Sigfrid's direction and went outside with Sigfrid to give him his identification because Sigfrid asked him to. As noted in R. v. Grafe, [1987] O.J. No. 796 (C.A.), "[t]he subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained." In other words, was the detainee's belief objectively reasonable? As I have already noted, I am of the view that Cowan's belief that he was detained was objectively reasonable.

[37] Moreover, Sigfrid testified that he stayed in the room as Cowan was getting dressed after the interrogation had been conducted to make sure that Cowan could not get out of the room because, as Sigfrid said, "If I left the room he could have gotten out." Finally, in answer to Mr. Fazari's question: "So, you'd agree with me that he was detained? He can't go anywhere, you're doing an investigation?" Sigfrid agreed and answered, "Yes."

[38] While Sigfrid went on to say, "as far as I was concerned I was talking to him but I did not actually detain him," I am of the view that on an objective assessment Sigfrid had detained Cowan for investigation from the moment after he entered the room, explained that he was conducting an investigation and then immediately proceeded to interrogate Cowan while Cowan was naked. [^12] This resulted, as Sigfrid conceded, in Sigfrid's obtaining his grounds to arrest Cowan for impaired driving.[^13]

[39] The issue of psychological detention was examined by the Court of Appeal in R. v. Wong, 2015 ONCA 657, (where the panel was composed of Strathy C.J.O. along with Doherty and Gillese JJ.A.). In Wong a female university graduate, who lived in a small, (600 to 700 square foot,) apartment called the police to report the theft of her car. The officer who arrived to investigate her car theft complaint smelled marijuana and saw drug use paraphernalia. He began to question Wong about drug use and she was arrested later that night for "serious criminal offences" after her boyfriend's drug stash was discovered. The trial judge permitted her responses to the officer's questions to be admitted and Wong was convicted.

[40] The first question on Wong's appeal was whether she was detained before her arrest and, if so, when. The test for psychological detention is objective. Applied to Cowan's situation of an allegation of impaired driving I am obliged to determine how a reasonable person would have responded to Sigfrid's interrogation for impaired driving.

[41] In Wong the Crown pointed to a number of criteria in support of its contention that Wong was not psychologically detained including: (i) the absence of demands or directions; (ii) the focus of the investigation being on Wong's boyfriend; (iii) that the officer cautioned Wong that she need not answer his questions; and, (iv) that Wong had the power to conclude the encounter by asking the officer to leave her home. In addition, the Crown pointed to the fact that the officer in Wong believed he was speaking with a witness and not to a suspect.

[42] Despite the presence of all of these factors in the Crown's favour, the Court of Appeal held that on an objective assessment Wong was detained early in her encounter with the officer who was dispatched to deal with her car theft complaint. None of the factors pointed to by the Crown in Wong to mitigate a sense of detention are present in Cowan's encounter with Sigfrid:

• after interrogating Cowan, Sigfrid directed him to get dressed and go outside to provide Sigfrid with documentary confirmation of Cowan's identity;
• Sigfrid focused his investigation on Cowan and not some other person;
• Sigfrid did not caution Cowan that he was at liberty to not answer the questions being put to him by Sigfrid;
• Sigfrid was not in his home, a place in which he had the legal right to exclude Sigfrid;
• Sigfrid dealt with Cowan as the suspect in the investigation that he was conducting; and,
• arguably, Cowan was physically detained by Sigfrid.

[43] This last conclusion is objectively available given how small the massage room was. Initially, Sigfrid estimated the room to be 5'x5', then increased his estimation to 6'x6' and once Sigfrid was reminded by Mr. Brown that he, (Mr. Brown,) was six feet tall, Sigfrid increased his estimation of the room to be 9'x9'. The point is that this room was much smaller than Wong's apartment. Moreover, the massage room had only one door and Sigfrid was between the door and Cowan. Sigfrid effectively blocked Cowan from leaving the room. As Sigfrid said, Cowan would have had to run past him to get out. In consequence, Cowan was effectively if not formally physically detained by Sigfrid.

[44] As noted at paragraph [38] of Wong, "[t]he issue is whether there was a significant psychological restraint at the hands of the state. This depends on whether a reasonable person in [Cowan's] situation would conclude that [he] no longer had the freedom to choose whether or not to cooperate with the police: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 22."

[45] The judgment in Wong proceeds[^14] to highlight principles confirmed or established in R. v. Grant, 2009 SCC 32; viz.:

1. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits to or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.

2. Whether detention has been effected must be determined objectively having regard to all the circumstances, including the conduct of the police. Put otherwise, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.

3. 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 the state conduct that he or she has no choice but to comply.

[46] Paragraph [44] of Grant contains a non-exhaustive list of circumstances to determine whether a reasonable person in the individual's circumstance would conclude that he or she had been deprived by the state of the liberty of choice. That list is repeated in Wong at paragraph [42] with the following emphasis added by the Court of Appeal:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[47] Applying these criteria to Cowan's situation it is patent that on an objective assessment Cowan was detained by Sigfrid at the time Sigrid conducted his investigatory interrogation of him. Cowan was singled out for focussed investigation by Sigfrid. He was interrogated in the absence of others, in a tiny room, while Cowan remained naked and Sigfrid was fully clothed and armed. Sigfrid barged in on Cowan unannounced in a startling fashion. Sigfrid proceeded to completely control their encounter, demanding identification when Cowan was not obliged to provide it and directing Cowan to get dressed and obtain documentary confirmation of his identity. In addition, all of this occurred while Sigfrid believed Cowan's ability to operate a motor vehicle was impaired by Cowan's consumption of alcohol.

The Consequential S. 10(b) Breach

[48] Having investigatively detained Cowan from the moment he began to interrogate Cowan, Sigfrid was obliged to immediately provide Cowan with his right to counsel. It is common ground that he did not do so until he formally arrested Cowan. Sigrid's failure to do so amounted to a breach of Cowan's s. 10(b) rights. However, this breach is personal to Cowan and Cowan did not advance it as one of his grounds of complaint. That noted, I am of the view that the existence of this Charter breach is a circumstance that I ought to take into account when undertaking the s. 24(2) analysis of the s. 8 unreasonable seizure breach that I found did occur.

The S. 24(2) Analysis

[49] As noted in Wong, (at paragraph [57],) the focus of the application of s. 24(2) is the effect of admitting the impugned evidence on public confidence in the justice system, having regard to the following factors:

(a) the seriousness of the Charter-infringing state conduct;

(b) the seriousness of the breach on the Charter-protected interests of Cowan; and,

(c) society's interest in the adjudication on the merits.

The Seriousness of the S. 10(b) Breach (that was not raised by the defendant)

[50] In Wong, Strathy C.J.O., considered the failure to provide rights to counsel to a detainee as being a serious Charter-infringement, notwithstanding that the breach was not deliberate misconduct. Rather, he characterized it as a failure of that officer to appreciate the significance of his encounter with Wong; i.e., a failure to have a reasonable awareness of his obligations when he enforces a detention on a citizen. The same is true in this case. However, Sigfrid's breach of Cowan's s. 10(b) rights is ameliorated in two respects. First, and most significantly, Cowan did not complain of or pursue a remedy for this breach. And second, (which is undoubtedly the explanation for his failure to do so,) experienced and competent counsel with the luxury of time and reflection did not identify the breach. How much more difficult then was it for Sigfrid to do so, in the heat of the moment with much less legal acumen and experience, notwithstanding the comments of Justice Strathy? Nonetheless, Grant and Suberu are more than half a decade old and the acknowledgment of psychological detention have been well known to Canadian criminal law since circa 1988.

[51] Tracking Wong at paragraph [72], Sigfrid failed to provide Cowan with the information he most needed – that he had a right to legal counsel and that anything he said could be used against him. By answering Sigrid's question, Cowan went a long way toward giving Sigfrid the grounds to arrest him for impaired driving.

[52] Sigfrid investigatively detained Cowan and asked him a series of questions before arresting Cowan. He did not comply with s. 10(b). His investigation of Cowan was not a situation requiring any immediacy under tense and potentially dangerous conditions – Cowan was lying down naked, after all.

[53] Justice Strathy concluded that the officer in Wong did not respect Wong's rights because he did not understand them. Regrettably, the same can be said for Officer Sigfrid, at least in the circumstances that brought him into contact with Mr. Cowan. I note in this regard that Sigfrid thought that he was in "hot pursuit" when, he was not, (as Sigfrid did not have reasonable and probable grounds to believe Cowan had committed the offence of impaired driving when Sigfrid first encountered Cowan.) Further, I note that two years after these events, in preparation for trial, the Crown contacted Sigfrid to have him attempt to obtain a statement from Hitchcock's spouse. Sigfrid testified that during this request from Mr. Brown, he asked Mr. Brown if any legal issue arose as a result of his entry into the massage parlour. That is to say that despite having three years of policing experience at the time of these events he was apparently uncertain of his powers, authority and obligations at that time and that he remained so over the ensuing two years, (so far as these events are concerned.)

[54] As in Wong, this factor would favour exclusion, had the issue been raised by the defendant. Nonetheless, the existence of this breach is a matter that I am entitled to consider, as a circumstance, as I undertake a Grant analysis of the s. 8 seizure breach.

The Impact on Cowan's s. 10(b) Rights (that was not raised by the defendant)

[55] Had this complaint been raised, then just as in Wong, (see paragraphs [76] to [84],) this consideration points strongly in favour of exclusion of Cowan's statements and his breath testing results. Given that this complaint was not raised, I shall not review Strathy C.J.O.'s discussion of this factor other than dealing with the issue of discoverability.

[56] Once again, tracking Wong on the point at paragraph [79], "discoverability" of the evidence denotes "whether the evidence was discoverable independent of the breach: Grant, at paras. 122, 125. If the evidence was independently discoverable, the impact of the breach on the accused's rights may be attenuated." In my view, this consideration has some application to this investigation since, at the very least, the indicia of alcohol consumption by Cowan, (i.e. the state of his eyes and the smell on his breath, at a minimum,) would necessarily have been observed by Sigfrid, had he accorded Cowan his right to counsel and whether or not Cowan chose to invoke that right.

Society's Interest in an Adjudication on the Merits

[57] "This inquiry asks 'whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion.' Grant, at para. 79." (Quoting Wong at paragraph [85].) This factor almost always favours inclusion.

The S. 24(2) Grant Analysis Respecting the S. 8 Unreasonable Seizure Breach

The Seriousness of the Breach

[58] Sigfrid advised Cowan that he was investigating a complaint of drinking and driving and he immediately began to interrogate Cowan. As Justice Doherty stated in Harris "a person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police." Cowan could not and did not make an informed decision because despite detaining Cowan for investigation Sigrid failed to immediately inform Cowan of his right to counsel under s. 10(b), as he was obliged to do.

[59] In my view, this was a serious breach of s. 8. Sigfrid conducted an interrogation and seized incriminating admissions from Cowan without implementing Cowan's s. 10(b) rights. This seizure was unreasonable because of that s. 10(b) breach. In addition, as I have observed repeatedly, Sigfrid conducted this interrogation in an unreasonable manner – he conducted the interrogation of Cowan while Cowan was naked. This factor strongly supports exclusion of all of the incriminating answers given by Cowan. Equally, without those answers, Sigfrid had no basis for arresting Cowan and making an approved instrument demand upon him. The results of Cowan's breath testing should also be excluded on the basis of this factor.

The Seriousness of the Charter-Infringing Conduct

[60] This factor, too, supports exclusion of the incriminating answers that Cowan gave to Sigfrid during Sigfrid's interrogation of Cowan. The unreasonable interrogation conducted by Sigfrid was pursued by him because he simply failed to appreciate that proceeding to question a naked suspect was an unreasonable exercise of his authority as a police officer. Equally, had Sigfrid provided Cowan with his s. 10(b) rights as he ought to have done, Sigfrid would have been required to hold off any interrogation of Cowan until Sigfrid had implemented those rights if Cowan had invoked them. Sigrid's failure to provide Cowan with his rights under s. 10(b) made his interrogation of Cowan an unreasonable search for and seizure of Cowan's answers irrespective of the fact that Cowan was interrogated while naked.

Society's Interest in an Adjudication on the Merits

[61] Cowan's answers were "free and voluntary" in law. Equally, his breath testing results, obtained as a consequence of the admissions that he made to Sigfrid are reliable evidence obtained with minimal intrusion. The legally voluntary nature of Cowan's responses and the minimally intrusive and reliable nature of the breath testing procedures militate towards inclusion of those answers and those results.

Balancing the Grant Factors

[62] As Strathy C.J.O. determined in Wong, (at paragraph [88],) "[t]he police conduct in this case, while not deliberate, was unacceptable. To admit the evidence would be to condone ignorance of Charter standards and a casual approach to the protection of Charter values." In my view this is not a close call. The first two Grant factors strongly support exclusion of almost all of the evidence obtained or observed by Sigfrid. While the third factor supports inclusion, the seriousness of the offence is simply one of the three factors and in any event, pursuant to R. v. S.B., 2014 ONCA 527, the seriousness of the charges should not overwhelm the analysis. (See Wong, at paragraph [87].)

[63] In the result, I rule as follows: all of the verbal admissions made by Cowan to Sigfrid are excluded from evidence in this prosecution. Sigfrid's observations that Cowan was unsteady on his feet and had difficulties maintaining his balance while putting on his clothing and that he exhibited minor and momentary difficulties extracting his licence from his wallet are also excluded as evidence at this trial. Likewise, the breath test results are excluded. As noted previously, but for the admissions made by Cowan, there was no basis for the approved instrument demand which resulted in those BAC readings. Accordingly, the charge of over 80 is dismissed.

[64] Notwithstanding those rulings, Sigrid's observations that Cowan's eyes exhibited signs consistent with the consumption of alcohol and that Cowan's breath was laden with the odour of the consumption of alcohol are substantively admissible and will be considered by me as part of the Crown's case in this prosecution.

Dated at St. Catharines, this 20th day of April 2017.

J.S. Nadel, (O.C.J.)

Footnotes

[^1]: That is to say, driving a motor vehicle while his ability to do so was impaired by his consumption of alcohol and driving a motor vehicle with a BAC of over 80 milligrams of alcohol in 100 millilitres of blood.

[^2]: Quoted from paragraph [64] of the Applicant's factum.

[^3]: See R. v. Simpson, [1993] O.J. No. 308 (C.A.) at paragraphs [61] to [65]; and see R. v. Chanmany, [2016] O.J. No. 2322 (S.C.O.) at paragraphs [16] to [18].

[^4]: That said, I note that Sigfrid's entitlement to act was subject to any other factors that might preclude the presence of this articulable cause from being a justifiable exercise of his common law powers as a police officer. As Doherty J. noted at paragraph [66] in R. v. Simpson, [1993] O.J. No. 308 (C.A.), the presence of articulable cause does not necessarily render every detention for investigative purposes to be a justifiable exercise of a police officer's common law powers, since the propriety of the exercise is always subject to case specific considerations which may come into play.

[^5]: This table had a hole in it so that one could lay completely face down, without have to turn one's face to the side.

[^6]: This submission is implicit in the defence's application.

[^7]: See R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 (C.A.) and see R. v. Chanmany, [2016] O.J. No. 2422 (S.C.O.) where K.L. Campbell J., sitting as a summary conviction appeal court discusses, explains and applies Harris.

[^8]: I am indebted to Justice Campbell's discussion of this issue in Chanmany, a decision that I have tracked extensively in these reasons.

[^9]: 90 Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: "humiliating", "degrading", "demeaning", "upsetting", and "devastating" (see King, supra; R. v. Christopher, [1994] O.J. No. 3120 (QL) (Gen. Div.); J. S. Lyons, Toronto Police Services Board Review, Search of Persons Policy -- The Search of Persons -- A Position Paper (April 12, 1999)). Some commentators have gone as far as to describe strip searches as "visual rape" (P. R. Shuldiner, "Visual Rape: A Look at the Dubious Legality of Strip Searches" (1979), 13 J. Marshall L. Rev. 273). Women and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault (Lyons, supra, at p. 4). The psychological effects of strip searches may also be particularly traumatic for individuals who have previously been subject to abuse (Commission of Inquiry into Certain Events at the Prison for Women in Kingston, The Prison for Women in Kingston (1996), at pp. 86-89). Routine strip searches may also be distasteful and difficult for the police officers conducting them (Lyons, supra, at pp. 5-6).

[^10]: Sigfrid initially said that the complaint was that a driver was all over the road. In a second iteration he added that the driver was possibly impaired.

[^11]: Cowan also testified that it was his practice to cooperate with the police.

[^12]: Sigfrid also told Cowan that he had to identify himself to Sigfrid. I note that Cowan was not in care and control of a motor vehicle when that demand for identification was made.

[^13]: While Sigfrid testified that he was in "hot pursuit" of the male driver who was suspected to be impaired, the Crown conceded Sigrid's lack of reasonable and probable grounds to believe the male had committed that offence at the time Sigfrid entered the massage parlour, precluded reliance on that doctrine as a basis for entering the massage room. See Tetard v. R., [2010] Q.J. No. 13162 (C.A.) and see R. v. Golubentsev, [2007] O.J. No. 4608 (O.C.J.), where Duncan J. discusses the law relating to sanctuary and seeking to be "home free."

[^14]: At paragraphs [39] to [43].