Ontario Court of Justice

Date: June 14, 2017

Court File No.: [Not provided]

Between

Her Majesty the Queen

— and —

Paul Doucette

Before: Justice H. Borenstein

Heard on: May 1, 2017

Reasons for Judgment released on: June 14, 2017

Counsel:

• Ms. Erdie, counsel for the Crown
• Ms. Maccia, counsel for Paul Doucette

BORENSTEIN J.:

[1] Charge and Issues

Paul Doucette is charged with simple possession of crack cocaine. The only issues on the trial are the Charter issues. The defence submit that sections 8, 9, 10(a) and 10(b) were violated.

[2] Facts – Initial Detention and Arrest

At around 3:20 a.m., P.C. Shaw was in his cruiser with his partner in the area of Sherbourne and Dundas Streets. There had been a violent robbery at a convenience store at that intersection at 3:00 a.m. two days earlier. P.C. Shaw attended and had seen video footage of that robbery. He thought the accused matched the description of the suspect he had seen on the video. He and his partner pulled over to investigate the accused. The accused and the others were detained at that point.

The accused quickly became aggressive and belligerent. He seemed drunk and immediately began speaking over the officer saying "what what – I'm drunk I'm drunk". The officer did not recall what he said to the accused in that initial exchange. The officer felt he could not communicate with the accused. P.C. Shaw was concerned for his safety due to the accused's behaviour and the fact that this was a dangerous intersection. A crowd began forming and seemed hostile. The accused aggressively interacted with some in the crowd. P.C. Shaw's partner stood a few feet away with the accused's two friends. He was focused on them, not the accused.

Within two minutes of getting out and detaining the accused, Shaw arrested the accused for public intoxication pursuant to s. 34(5) of the LLA which permits the arrest of persons who are intoxicated in public who the officer believes are a danger to themselves or others.

Shaw advised the accused he was being arrested for public intoxication and read him his right to counsel. The accused declined counsel. He was then placed in the cruiser and the events in the cruiser are captured on the in car camera. As is conceded by all, the accused was obviously drunk.

They left the scene at 3:34 am and arrived at the station at 3:40 am. The cruiser camera was turned off when they arrived at the station until they entered the Sallyport just before 4:10 am.

When removed from the cruiser at 4:10, the officer searched the back seat and found 4.2 grams of crack cocaine. The accused was not read his right to counsel in relation to the drug charge until 5:29 am.

The accused was brought into the booking hall just after 4:10 am. That is again captured on video. He is drunk and speaking over the officers and will not listen to their direction. They strip searched him and he was confrontational and belligerent. One officer testified that the accused was given a distractionary strike in the search room. The other officer did not describe the scene same way. As indicated, he was not advised of his right to counsel until 5:29 am. At which time he said he wanted to speak with duty counsel. The supervising officer told P.C. Shaw that he would only let the accused speak with counsel once the accused sobered up. They let him speak to counsel just before noon.

I heard from the two arresting officers. No defence was called.

As noted at the outset, the sole issue in this case are the charter issues. Everything else is conceded. The defence submits that sections 8, 9, 10(a) and 10 (b) were violated.

The onus is on the accused in relation to these charter issues.

Charter Issues

The defence raises the following four Charter issues.

1 – Lawfulness of Initial Detention

The defence submits there was no basis to detain the accused for the robbery due to the fact that the officer made no notes of the description of the suspect at the time he watched the video two days earlier.

I did not call upon the Crown to respond to this issue. In my view, the un-contradicted evidence of the officer, which I found credible and reliable on this point, was that he honestly believed the accused was the suspect he had seen on video committing the violent robbery. He had seen the video just two days earlier. The accused was seen at that same unusual hour at the same intersection. The officer had a reasonable basis to suspect that the accused was the person and he had legal authority to detain him for investigative purposes. In fact, he had a duty to investigate him.

2 – Alleged Failure to Promptly Advise the Accused of the Reasons for His Detention at the Scene

The accused further argues that, even if the officer had grounds to detain him for investigative purposes, he failed to immediately advise him of the reasons for his detention and failed to give him his right to counsel.

However, again on the un-contradicted evidence, the accused, when detained, immediately began repeating himself in a drunken and belligerent fashion. The accused's subsequent behaviour, particularly as captured on video at the station, shows the accused either ignoring or speaking over the officers as they are trying to speak with him. Shaw decided to arrest the accused within about two minutes of first encountering him and, shortly if not immediately thereafter, advised him that he was arrested for public intoxication and read him his right to counsel which the accused declined. In those circumstances, the several minute delay in advising the accused of the reasons for his detention and right to counsel were occasioned by the accused's own behaviour. There was no breach of the right to be promptly informed of the reason for his detention.

3 – Lawfulness of Arrest Under the Liquor Licence Act

The accused argues that P.C. Shaw lacked grounds to arrest the accused under s. 31(5) of the Liquor Licence Act, which is the section under which he effected the arrest. A lawful arrest requires both subjective and objective grounds for the arrest.

S. 31(5) provides:

Arrest without warrant

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person. R.S.O. 1990, c. L.19, s. 31 (5).

Subsection 4 renders it an offence to be intoxicated in a public place.

The defence concedes that Doucette was intoxicated in a public place. Further, he was obnoxious. However, in the several minutes the officer dealt with him prior to arresting him, he never asked the accused his name, his address and had no recollection of what he said to the accused nor what the accused said to him. In these circumstances, the defence submits that there was no basis to believe the arrest was necessary for the safety of any person, including the accused. Neither subjectively nor objectively.

The Crown replies that, armed with the belief that he committed a robbery, and given his belligerent and aggressive position, there was a basis to arrest the accused in this highly dynamic situation particularly with the crowd forming.

P.C. Shaw testified that the accused was confrontational and belligerent throughout including while at the police station. He testified that a crowd was forming and the accused was waving his fists at the crowd, yelling at them much like he was doing to Shaw. The accused's behaviour continued in this fashion at the station when he was about to strike an officer in the search room. As a result, Officer Burger delivered a distractionary strike to the accused.

Shaw's partner however, was also on scene. Admittedly, he was focused more on the other two people to ensure they did not interfere with Shaw and the accused. He described the accused as confrontational – which he explained as "verbal jibber jabber". Not physically aggressive. He did not recall seeing any crowd and did not recall seeing the accused behave violently with the crowd. In the search room, the accused's confrontational and uncooperative behaviour continued. However, the accused was not violent in the search room and he gave no evidence of a distractionary strike.

The videos of the accused, in the cruiser and at the station, were also viewed.

While the accused is in the control of the police, Shaw did testify that his behaviour continued as it was on the side of the road.

The video shows the accused as drunk and frustrating to deal with. As someone who will not listen to others and talks over others about whatever he wants to say. But it does not show someone who is violent or aggressive or dangerous.

In light of the contradiction between the two officers as to whether the accused was physically aggressive with anyone, and the video, I am not satisfied that arresting the accused was objectively reasonable. The accused was drunk in public. He could have been ticketed for that. Had the officer asked him his name or address and the accused refused to give it, then he could have been arrested under section 48 of the L.L.A.

4 – Right to Counsel

Once the drugs were found at 4:10 am, the accused was obviously in a lot more jeopardy. The officers did not re-advise him of his right to counsel until 5:29 am. The accused wanted to speak with counsel but, apparently the supervisors, who were not called as witnesses, decided that he could only speak when he sobered up at 11:44 am. The delay in advising him of his right to counsel was a violation of the right to counsel. The further delay in implementing his right to counsel due to his drunkenness was also questionable. The officers delayed the implementation of the right to counsel for over 6 hours because he was drunk. Police routinely allow persons to consult with counsel when impaired; see for example, impaired drivers. I am left wondering why the lengthy delay and whether it was slightly retributive for the accused's obnoxious behaviour.

Section 24(2) of the Charter

Turning to 24(2) and beginning with the impact of the breach of the accused's Charter protected interests. Starting with the right to counsel, the impact on the accused's Charter protected interests as a result of the delay in advising or implementing Doucette's right to counsel was minimal. No statement was sought or obtained. The absence of grounds to arrest him is a different matter. While the officer had a duty to investigate Doucette for the robbery, he arrested Doucette for public intoxication without grounds. That led to his further detention, search, being placed in the cruiser, taken to the station and ultimately the discovery of the crack cocaine. The impact on Doucette's right to be secure against unreasonable search and seizure and not to be arbitrarily detained was significant. Further, without the arrest, the drugs would not have been found.

The seriousness of the Charter infringing conduct is less significant as it relates to the absence of grounds for arrest. The officer was scared. He knows the area. That caused him to act precipitously which he did by arresting the accused for public intoxication. He did not set out to unlawfully arrest the accused. Ironically, the delay in advising and the implementing the right to counsel was more serious given that it seems to have been deliberate. In my view, the seriousness of the Charter infringing conduct in this case is in the mid-range, perhaps slightly lower than the mid-range.

Finally, there would be no case for the Crown without the reliable evidence of the crack cocaine. This factor militates toward case for the crown would be gutted without the evidence of the drugs, which evidence is reliable.

In the end, I come back to the point that the arrest for public intoxication was unlawful. That resulted in the prolonged detention, search and the discovery of the drugs. Were it not for that arrest, this case would never be brought. On balance, it is my view that admitting the evidence could bring the administration of justice into disrepute and must be excluded.

Released: June 14, 2017

Signed: Justice H. Borenstein