Court Information

Court: Ontario Court of Justice

Court File No.: Newmarket

Date: June 30, 2017

Before: Justice Marcella Henschel

Heard: April 7, May 18, and June 15, 2017

Reasons for Judgment Released: June 30, 2017

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Nicholas Rossi

Counsel:

• Kevin Pitt, for the Crown
• Charn Gill, for the accused Nicholas Rossi

Overview

[1] On January 22, 2016 at 2:04 a.m. the Applicant was stopped by P.C. Racco during a routine traffic stop. The Applicant admitted to having consumed alcohol, and as a result the officer made a roadside screening device demand. The applicant registered a fail on the screening device and was arrested for Operating a Motor Vehicle Over 80 mg contrary to section 253(1)(b) of the Criminal Code of Canada. The applicant was subsequently taken to the police station and provided two samples of his breath that resulted in readings of 160 mg per 100 ml of blood and 140 mg per 100 ml of blood and, as a result, he was charged with operating a motor vehicle over 80.

[2] The applicant seeks a stay of proceedings under section 24(1), or in the alternative the exclusion of the breath readings under section 24(2) as a remedy for a number of alleged breaches of the Charter specifically:

i.) A breach of s. 10(b) of the Charter as a result of an eight minute delay between the Applicant's arrest and the provision of the rights to counsel;

ii.) A breach of the applicant's right to counsel of choice pursuant to s. 10(b) of the Charter due to the officer's failure to allow the Applicant to retrieve his cellular phone to access the contact information for his counsel of choice.

iii.) A breach of s. 9 of the Charter on the basis that the Applicant was detained in the absence of reasonable grounds to believe that if he was released from custody he would fail to attend court as required by s. 498(1.1)(b) of the Criminal Code.

iv.) A breach of s. 10(b) of the Charter due to the failure of the police to give the Applicant a further opportunity to speak with counsel following the decision to detain him for a show cause hearing.

[3] The burden to establish the alleged breaches of section 9 and 10(b) of the Charter falls on the Applicant on a balance of probabilities.

[4] The trial proceeded by way of a blended proceeding. P.C. Racco, P.C. Watlikiewicz, and P.C. Morrison were called by the Crown and the Applicant testified with respect to the Charter-related issues only. The Applicant conceded that if the proceedings are not stayed, or the breath results excluded, that a conviction on the charge of operate a motor vehicle over 80 should follow.

Summary of the Evidence

[5] P.C. Racco initially stopped the Applicant at 2:04 a.m. She believed he was crossing over the centerline of the roadway and stopped his car to conduct a sobriety check. The applicant admitted to consuming alcohol and P.C. Racco made a roadside screening demand pursuant to section 254(3) of the Criminal Code. The applicant provided a sample of his breath, which resulted in a fail, and, as captured on Exhibit 2 the in car camera recording (ICC), at 2:11:09 a.m. P.C. Racco placed the Applicant under arrest.

[6] Following the Applicant's arrest, P.C. Watlikiewicz, a male officer, searched the Applicant incident to arrest. The ICC audio establishes that the search of the Applicant commenced immediately following his arrest and continued until he was placed in the cruiser at 2:15:42 a.m. P.C. Racco assisted with the search and during the search the Applicant spoke with her. He told P.C. Racco that he was leaving in two weeks and asked what he had blown. She told him the reading was a fail and that he would get another reading at the station. He told her he only had two or three drinks. At 2:15:42 a.m. as he was placed in the rear of the cruiser P.C. Racco told the Applicant that his car would be impounded for seven days and P.C. Watlikiewicz told him he was being recorded on audio and video.

[7] At 2:15:52, shortly after being placed in the cruiser, the Applicant asked P.C. Racco if someone could get his phone from his car, stating "When I get to call a lawyer for bail or whatever, I need my phone, for like bail or whatever, I don't have the numbers in my head". P.C. Racco asked if he had a lawyer, and he responded "Yeah, I don't have the numbers in my head". He then indicated that his parents were in Florida and he had no one to call. He commented that the officers did not care. P.C. Racco told the Applicant that they would proceed one step at a time and agreed to get his phone. She then went the short distance to his car to retrieve his phone. P.C. Racco returned shortly after 2:17 a.m. and confirmed with the Applicant that she had his phone. He said. "Please don't ruin my life", and repeated that he was leaving the country in three weeks, that he was travelling to Australia, and said "this will kill everything". Immediately following these comments at 2:18:08 a.m. P.C. Racco began to read the Applicant the rights to counsel, caution, and breath demand, seven minutes after his arrest and two minutes after the search was completed and he was placed in the cruiser.

[8] After reading the rights to counsel P.C. Racco asked the Applicant if he wished to call a lawyer now. He responded "I don't have my phone" and asked how much time he had to contact a lawyer. He told P.C. Racco that he needed to reach out to someone to find the lawyer's number. P.C. Racco asked the Applicant a second time whether he wished to contact a lawyer and the applicant replied "Yes, I do." As P.C. Racco read the caution and breath demand the Applicant became argumentative and antagonistic. He stated a number of times "this is a joke" and interrupted and talked over the officer. In response to the breath demand the Applicant stated that it was "ridiculous commentary".

[9] In respect of the delay between the arrest and the provision of rights to counsel, P.C. Racco explained that the delay included the time for the Applicant to be placed under arrest and searched and explained that the Applicant was speaking and interrupting and wanted his cell phone. As a result, it took some time to place him in the rear of the cruiser. P.C. Racco said that she usually reads rights to counsel when the subject is in the cruiser, away from traffic. She said she took time to retrieve his cellphone because he wanted the cell phone and she did not believe he would listen to her unless she retrieved it. She waited to provide the rights to counsel until the search was completed, for her safety and his, and until he was settled and in a position to hear her out. She noted that it was a dynamic situation and she was doing her best at the side of the road.

[10] P.C. Racco left the scene with the Applicant at 2:24 a.m. and arrived at the police station at 2:34 a.m. En route to the station the Applicant repeated that his whole family was in Florida and he had no one to call. He stated that it was impossible to reach his mother, the registered owner of the car. He continued to comment that his arrest was ridiculous, and asked the officer "aren't their people being stabbed, aren't there more important things". He told the officer that she ruined people's lives for no reason.

[11] The Applicant again asked if he would be allowed access to his phone at the police station and P.C. Racco told him he would be monitored using the phone if he needed to retrieve a number. Mr. Rossi asked what his options were and P.C. Racco told him that she would go through his options at the police station.

[12] Once at the station, during the booking process the Applicant asked about contacting a lawyer and repeated that he needed his phone to get a number. P.C. Racco told the Applicant that she was going to put him in contact with duty counsel. The Applicant stated "so I have to memorize my lawyer's phone number?" P.C. Racco then asked the Applicant if he had a name for a lawyer because she could look up the lawyer. Although the Applicant's response was inaudible on the ICC audio, the Applicant testified that at this point he provided the first name Susan but was unable to provide the last name. P.C. Rocco then asked do you have a last name, and the Applicant said "she is a client". I accept that the Applicant provided a first name for the lawyer he wanted to speak to, but could not remember her last name.

[13] P.C. Racco testified that because she believed that the Applicant was unable to provide her with a name or number of a lawyer or a name she could look up in the directory she made the decision to put him in contact with duty counsel. P.C. Racco testified that she did not give him access to the phone because at the station the Applicant was saying inconsistent things about whether the contact number was on the phone or if he needed the phone to call someone to get the number. She was not satisfied that the Applicant would find anything on the phone that could assist in reaching counsel. P.C. Racco called duty counsel at 3:01a.m. and the Applicant spoke with duty counsel at 3:06 a.m.

[14] After speaking with duty counsel the Applicant was turned over to the breath technician, P.C. Morrison, at 3:13 a.m. During the breath test procedure the Applicant asked P.C. Morrison if he would be released if he failed the breath test, and P.C. Morrison told him he would be released on a Form 10. The Applicant then told the officer that he was going on vacation in three weeks and not coming back. He asked what would happen if he did not come back. The officer told him that a bench warrant would be issued and he asked if a bench warrant applied internationally. He told the officer that he would be travelling to Cambodia, Thailand, and Australia, and planned to apply for a visa to work in Australia. He then laughed and said "if things go south maybe I won't come back".

[15] From the conversation P.C. Morrison understood that the Applicant was going overseas for a number of months with no fixed return date and he relayed the information he had received to P.C. Racco. He was concerned that the applicant would not return to attend court.

[16] The Applicant provided two samples of his breath which resulted in readings of 167 mg of alcohol per 100 ml of blood, and 148 mg of alcohol per 100 ml of blood. The breath readings were completed at 3:51 a.m. and the Applicant was served in the cells with the paperwork including the Certificate of the Qualified Technician at 5:08 a.m.

[17] After providing the breath samples P.C. Racco went to speak to the Applicant in the cells about his travel plans. He told her that he was not sure when he would be returning because he did not have a return flight. She knew he was destined for three countries. P.C. Racco testified that based on his plans to leave the country on February 10, 2016 for an indefinite period she did not know if he would return within the year and was not satisfied that he would attend court as required.

[18] P.C. Racco decided to hold the Applicant for a show cause hearing. She testified that she thought it would be in the best interest for the courts and for him so he could proceed with his vacation knowing what the court would suggest for him. She acknowledged that she knew he lived with his mother, father, and siblings and agreed that she did not make inquiries about his citizenship, whether he could work in any other country, or if he would have his job when he returned. P.C. Racco could not recall if she explicitly asked the Applicant if he would return for court, and noted that he was giving her a hard time and she did not believe she would get an upfront answer.

[19] The applicant testified that he is 25 years old, was born in Scarborough and has always lived in Canada. He lives with his parents and two of his siblings. He works as a hairdresser in Vaughan, Ontario. On January 22, 2016 his family was on vacation in Florida for two weeks.

[20] He testified that after he was stopped by P.C. Racco he wanted his phone because he had a client named Susan who was a criminal lawyer. Her number was on his phone. During his arrest he was told that he could use the phone under the supervision of the police and he thought that would happen. Once at the station the officers asked if he had a lawyer and he told them the phone number was in his phone. He told the officer the first name of the lawyer he wanted to contact was Susan. He acknowledged in cross-examination that he may have said that he wanted the phone to contact someone who could assist him to reach the lawyer, and was unclear about why he needed to access his phone. He testified that at the station the officers told him he could not use his phone. When they asked him for the lawyer's last name and he could not think of it the officers told him he was using duty counsel. He said it seemed like duty counsel was his only option but he wanted to speak to someone he knew and trusted. After he provided the breath tests he was lodged back in the cells and the officer told him he was staying the night. He said he did not know why. They did not ask him if he wanted to speak with a lawyer again.

[21] The Applicant was taken to court for a bail hearing the same morning and was assisted by duty counsel who contacted his employer. He was released at 1:08 p.m. on his own recognizance with a cash deposit of $2000, and with the terms that he attend court on February 5, 2016 and thereafter as required, and to notify P.C. Racco of his date of departure from Canada, and within 48 hours of his arrival back into Canada.

[22] In respect of his travel plans the Applicant testified that he did not know how long he would be away and that he had obtained a work visa for a year. In re-examination he testified that he was going to come back to his job and planned to be gone 3 or 4 months.

[23] In his affidavit the Applicant indicated that at the roadside when the officer asked him to step outside of the vehicle and take the test she told him if he failed that he would have to attend the police station for further testing but he would be released from the station. The officer was not asked whether she told the Applicant at the scene that he would be released at the station and this statement is not found in the ICC recording of the contact at the scene between the Applicant and P.C. Racco.

[24] There was a conversation between the Applicant and the breath technician, after he spoke with duty counsel, during which the Applicant asked P.C. Morrison whether he would be released if he failed the breath test. This conversation was captured on the breath room video, Exhibit 3. P.C. Morrison told the Applicant that he would be released on a promise to appear. This lead to the discussion with P.C. Morrison about his travel plans.

[25] I find that the Applicant was mistaken about when the discussion about his release took place and that it took place after he spoke with duty counsel with P.C. Morrison, not at the scene with P.C. Racco.

Issue 1: Delay in Provision of the Rights to Counsel

[26] The applicant alleges that the delay that occurred between the arrest of the Applicant and the provision of his rights to counsel violated his s. 10(b) rights. The ICC audio establishes that the delay was a period of 7 minutes.

[27] In Suberu the Supreme Court of Canada made clear that a detainee must be informed of his right to counsel as soon as the detention arises. The court held as follows:

If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

[28] Although the court held that "without delay" means "immediately" for the purposes of s. 10(b), the immediacy of the obligation is subject to concerns for officer or public safety.

[29] I am not satisfied that the seven minute delay between arrest and the provision of the rights to counsel constituted a violation of s. 10(b) of the Charter.

[30] Immediately following the arrest the officer moved towards providing the Applicant with his rights to counsel. Before she could do so, for her safety, and the Applicant's safety, he had to be searched and placed in the cruiser. The search of the Applicant incident to arrest took four and a half minutes, occurring between 2:11:09 a.m. and 2:15:42 a.m. During this time P.C. Racco responded politely to questions and requests of the Applicant.

[31] After the Applicant was placed in the cruiser, the officer did not commence reading the rights to counsel for approximately two minutes to enable the Applicant to settle and to be in a position to hear her out. Shortly after the Applicant was placed in the cruiser, he asked P.C. Racco to retrieve his phone, explaining that he needed it to contact a lawyer. P.C. Racco obtained his phone. I accept P.C. Racco's evidence that she decided to retrieve the Applicant's cellphone before she read the rights to counsel because she believed that he would not listen to her until she retrieved it. Moreover, his request was directly related to the rights to counsel. This two minute delay did not breach the Applicant's 10(b) rights. After retrieving his phone, she read him the rights to counsel.

[32] I accept that an arrest at the side of the road is a dynamic situation and that P.C. Racco was doing her best to provide rights to counsel immediately once safety concerns were addressed and the applicant was in a position to listen.

[33] While officers must immediately provide detainees with the right to counsel in order to mitigate the legal disadvantage and legal jeopardy they face, this obligation is subject to the need to address officer and public safety.

[34] Officers are entitled to take reasonable steps to ensure their safety, the safety of the public, and the detainee's safety prior to reading the rights to counsel. Without limiting what this may entail, it includes searching an arrestee incident to arrest, and placing an arrestee in a safe location, like the back of a police vehicle, prior to reading the rights to counsel. It may include steps such as moving a vehicle off of a roadway if it poses a danger to the public.

[35] In addition, police officers as a part of ensuring their safety and that of the arrestee, often need to rely upon communication skills to manage their relationship with the arrestee so that the situation does not become confrontational. An arrest is a volatile situation and officers must be given some discretion about how to best proceed in dealing with individual accused. While officers must refrain from eliciting evidence from an arrestee prior to the provision and implementation of the rights to counsel, this may involve listening to and responding to an arrestee about their circumstances and what is taking place. Courts must recognize this important aspect of the day to day activities of a police officer in assessing whether officers have complied with the requirement to provide rights to counsel and should be reticent to dissect every second of contact with an arrestee where the officers are diligently moving towards the provision of rights to counsel.

[36] In all of the circumstances, I have no hesitance in finding that P.C. Racco was diligent in providing the Applicant with his rights to counsel without delay, and that there is no merit to the alleged violation of section 10(b) due to the seven minute delay in the provision of the informational component of the rights to counsel.

Issue 2: Right to Counsel of Choice

[37] I find that the Applicant has established that the officers did not fulfill the implementational duties of s. 10(b) of the Charter by failing to facilitate contact with the Applicant's counsel of choice.

[38] A detained person has a right to consult with the counsel of his or her choice and the police must facilitate that contact. The detainee must be given a reasonable opportunity to receive legal advice from someone they know and trust. It is only if the lawyer chosen cannot be available within a reasonable time that the detainee should be expected to exercise the right to counsel by calling another lawyer.

[39] Where a request has been made to speak with a specific lawyer, there is an obligation to facilitate contact with that lawyer whether the person has the lawyer's number available or not. The obligation to facilitate contact includes providing access to a detainee's cell phone to obtain the number for a lawyer and permitting a phone call to a friend or relative to obtain the name of counsel of choice.

[40] From the outset, the Applicant indicated that he wanted to consult with a lawyer and that he needed access to his phone to assist him to do so. Although he may not have clearly conveyed that his lawyer's number was in his phone, he consistently maintained that he needed access to his phone to make contact with his lawyer. Whether the phone would provide him the lawyer's number directly or the number of someone who might put him in contact with his lawyer, the police had an obligation to allow him access to his phone to facilitate contact with his lawyer.

[41] Before leaving the scene, P.C. Racco obtained the Applicant's phone from his car. Despite the fact that the phone was readily available, instead of permitting the Applicant to access his phone to look for the lawyer's number himself, P.C. Racco asked the Applicant for the name of his lawyer so that she could search for the lawyer in a directory. When he could not provide a first and last name to assist her search, P.C. Racco decided to contact duty counsel. The Applicant did so because he felt he had no other choice. After he spoke with duty counsel the officer made no inquiries to determine if he was satisfied with the advice he had received from duty counsel or if he still wanted to speak with his own lawyer. In the circumstances, I find that the Applicant's s. 10(b) rights, specifically his right to consult with his counsel of choice, were infringed by the police.

Is a Stay or the Exclusion of Evidence Justified for a Breach of the Right to Counsel of Choice?

[42] The Applicant has not established that this breach justifies the requested remedy of a stay of proceedings under section 24(1) of the Charter, either independently, or as part of other alleged breaches of the Charter. I will address the application for a stay under 24(1) together with my findings in respect of the alleged s. 9 breach.

[43] In respect of the alternative remedy of exclusion of evidence under section 24(2), the Applicant has not established on a balance of probabilities that the admission of the breath samples would bring the administration of justice into disrepute.

[44] Exclusion of evidence is not automatic upon a finding that it was obtained in a manner that violated the Charter. Section 24(2) of the Charter requires the Court to exclude evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The accused bears the burden of establishing this on a balance of probabilities.

[45] According to the Supreme Court of Canada decision in Grant, there is a three pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter. The Court must assess and balance the effect of admitting the evidence on society's confidence in the administration of justice, having regard to:

a) The seriousness of the Charter infringing state conduct;

b) The impact of the breach on the Charter-protected interests of the accused; and

c) Society's interest in the adjudication of the case on its merits.

[46] This requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account.

[47] In respect of the seriousness of the state infringing conduct, P.C Racco breached the applicant's 10(b) rights by failing to take sufficient steps to enable the Applicant to contact his counsel of choice. Specifically, the officer should have given him access to his cell phone. However, I do not find that P.C. Racco made a wilful or conscious decision to disregard the Applicant's Charter protected rights. There is no evidence that the Applicant was mistreated or subjected to any demeaning or invasive investigative procedures. Moreover, despite the Applicant's at times antagonistic comments to P.C. Racco, she remained responsive, professional, and polite. The seriousness of the breach is tempered by the fact that P.C. Racco did not understand that the lawyer's number was on the Applicant's phone. She believed that he did not know a first and last name of the lawyer, and as a result she was of the view that there was nothing on the Applicant's phone that would assist in locating the Applicant's counsel of choice. P.C. Racco had a responsibility to clarify any confusion about why the Applicant needed his phone to contact his lawyer as part of her duty to afford him a reasonable opportunity to speak with counsel of choice. Further, I find that P.C. Racco's breach of the Applicant's s. 10(b) rights was as a result of a failure to understand and fully appreciate her implementational duties. Ignorance of Charter standards cannot be condoned. As a result, this factor favours exclusion of the evidence, but only marginally.

[48] In respect of the degree of impact from the violation, the Supreme Court in Grant held that breath sample evidence is relatively non-intrusive and involves minimal interference with a suspect's bodily integrity. In Grant, McLachlin CJC and Charron J., writing for the majority of the court, described the collection of breath sample evidence in drinking and driving cases as a "relatively non-intrusive" procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the accused. Accordingly, the second factor in the 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples. Indeed, the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the accused's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter, given that the "method of collection is relatively non-intrusive". In addition, although the Applicant did not receive legal advice from a lawyer of his choice as he was entitled to do, he did receive legal advice from duty counsel prior to the provision of his breath samples. The second inquiry favours inclusion of the evidence.

[49] The third inquiry also favours inclusion of the impugned evidence. The evidence is reliable and essential to the prosecution. The societal interest in a trial on the merits in situations that present a hazard to public safety is high.

[50] I am satisfied that in the totality of the circumstances, while the seriousness of the Charter infringing state conduct tends to support exclusion of the evidence the other two prongs of the Grant test, the impact of the breach on the Charter-protected interests of the accused and society's interest in the adjudication of the case on its merits support admission. I conclude that the repute of the administration of justice is better served through the admission of the breath test results than through their exclusion.

Issue 3: The Decision to Detain for Show Cause and the Alleged Arbitrary Detention and Violation of 10(b)

[51] Section 498(1) of the Criminal Code requires an officer to release an accused upon a form of release described in section 498(1)(a)-(d). This requirement for release is subject to s. 498(1.1) which requires an officer to detain an accused where the officer has a reasonably grounded belief in the necessity to do so upon either public interest grounds, as set out in 498(1.1)(a), or in order to ensure the accused's attendance at court as per section 498(1.1)(b).

[52] Section 498(1.1)(b) of the Criminal Code provides:

The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[53] Section 498(3) speaks to the consequences of non-release by an officer and provides as follows:

An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of

(a) Any proceedings under this or any other Act of Parliament; or

(b) Any other proceedings, unless in any such proceedings, it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection(1).

Was there an Arbitrary Detention Contrary to Section 9 of the Charter?

[54] The meaning of reasonable and probable grounds for an arrest was classically stated by Cory J in Storrey as follows:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

Thus, the existence of reasonable grounds entails both an objective and a subjective component.

[55] Reasonable grounds is more than suspicion, but less than proof beyond a reasonable doubt, or even a prima facie case. It does not require proof on a balance of probabilities, but the officer must be acting on something more than reasonable suspicion or a hunch.

[56] These principles applied in the context of section 498(1.1) of the Code require an officer to subjectively form an honest belief that there are reasonable grounds to believe that if the person is released from custody they will fail to attend court, and the belief must be objectively reasonable.

[57] The Applicant told both P.C. Racco and P.C. Morrison that he was planning a trip overseas of undetermined duration. It was clear that he planned to be gone for a substantial period, at least three to four months, and potentially longer. It was not a typical vacation of short duration. He related that he hoped to obtain work overseas, planned to visit Australia, Cambodia, and Thailand, and had no definitive return date or return flight. He made inquiries about what would happen if he did not come back, and sarcastically stated, "Maybe if this goes south I won't come back". There is no question that the Applicant was a Canadian who had occupational and family ties in Canada. His personal background strongly suggested that he would return to Canada, at some point. However, the issue is not whether it was reasonable for the officer to believe that that the Applicant would not return to Canada. The issue is whether the officer had reasonable grounds to believe that the Applicant would fail to attend court in order to be dealt with according to law. Given his plans to be absent from Canada for a significant period of time the officer had a basis for her subjective belief that he would fail to attend court, and this belief was objectively reasonable.

[58] It must be remembered that while others may have reached a different conclusion on the same facts, that is not determinative. The inference that the subject might fail to appear may be reasonable even if it is not the only inference that can be drawn from the circumstances. Both P.C. Racco and P.C. Morrison dealt directly with the Applicant on January 22, 2016, and, contrary to the assertion in the Applicant's factum, he was not cooperative, respectful, and compliant, at all times. Rather, he was at times disrespectful, and antagonistic with the officers. The Applicant presented in a manner that could support the officer's belief that he did not appreciate the significance and seriousness of the charge of operating a motor vehicle "over 80" and that he would similarly fail to appreciate the significance of his legal obligation to attend court. He told P.C. Racco that his arrest was ridiculous, and repeated a number of times that it was a "fucking joke". He told the officer that she ruined people's lives, and was ruining his for no reason, and referred to the fact that the officers could spend their time better investigating real offences.

[59] The Applicant's attitude together with his indication that he planned to leave the country for an extended time with no definitive return date, and his suggestion that he might not come back, whether joking or otherwise, was cumulatively a basis upon which the officers could conclude that there were reasonable grounds to believe that he would fail to attend court. In my view, there were reasonable grounds to believe that the Applicant, if released from custody, would fail to attend court. I am not satisfied that the officer's decision was contrary to section 498(1.1) of the Criminal Code.

[60] In addition, I am not satisfied that the applicant has established on the balance of probabilities that the decision to hold the Applicant for a show cause hearing amounted to an arbitrary detention. If I am in wrong in finding that the constellation of facts could establish subjective and objective reasonable grounds to believe that the Applicant would fail to attend court, this does not lead inevitably to the conclusion that the detention under 498(1.1) was arbitrary and contrary to s. 9 of the Charter.

[61] An arrest, even if unlawful, may not be arbitrary. In Duguay, Murphy and Sevigny, the Ontario Court of Appeal held as follows:

It cannot be that every unlawful arrest necessarily falls within the words "arbitrarily detained". The grounds upon which an arrest was made may fall "just short" of constituting reasonable and probable cause. The person making the arrest may honestly, though mistakenly, believe that reasonable and probable grounds for the arrest exist and there may be some basis for that belief. In those circumstances the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary. On the other hand, the entire absence of reasonable and probable grounds for the arrest could support an inference that no reasonable person could have genuinely believed that such grounds existed. In such cases, the conclusion would be that the person arrested was arbitrarily detained.

[62] If the failure of the officers to explicitly ask the Applicant if he would attend court leads to the conclusion that the grounds were not objectively reasonable, this does not mean that the decision to detain was arbitrary. Rather this is a situation where the grounds were "just short" of those necessary under section 498(1.1)(b). Clearly, the officers honestly believed that it was necessary to detain the accused to ensure his attendance at court and there was some basis for the belief. The detention was not capricious nor arbitrary.

[63] I have not relied upon s. 498(3) in reaching my conclusion that there was no violation of s.9 of the Charter. However, the section provides that where an officer has not released a person from custody as soon as practicable in the manner described in 498(1) that officer shall be deemed to have been acting lawfully "for the purpose of "any proceedings under this or any other Act of Parliament". In Sattar, the Court concluded that, although this section deems a peace officer's actions to be lawful if a release is not effected as soon as practicable, the section does not throw "a cloak of permissibility" over any and all actions which the police officer might engage in while holding a person in custody pursuant to the Criminal Code. Although it is unnecessary to determine the effect of s. 498(3) for the purposes of this case, I agree with this conclusion. In addition, in Munson, the Saskatchewan Court of Appeal concluded that the purpose of the provision (analogous to a parallel provision in 495(3)) was to prevent persons escaping conviction for resisting arrest if it later transpires that the person was not convicted of the offence and that the section was intended to discourage persons resisting arrest where they believe they will not be convicted of the offence for which they are being arrested.

The Alleged Section 10(b) Violation: Should the Accused have been Provided a Further Opportunity to Contact a Lawyer Following the Decision to Detain?

[64] The Applicant relies on the Jutras decision in support of the position that the officers had an obligation under s. 10(b) of the Charter to give him a second opportunity to contact a lawyer following the decision to detain him. In Jutras the accused, a Canadian student attending university in the United States, was arrested for operating a motor vehicle over 80 and subsequently detained pursuant to s. 498(1.1)(b). At trial, the Applicant sought a stay due to the cumulative effect of a number of alleged Charter breaches, including an alleged breach of s. 9 related to his detention for a show cause hearing contrary to section 498(1.1).

[65] The court, sitting as a summary conviction appeal court, found that the trial Judge had erred in his assessment of the s. 9 application by misapprehending the evidence and in failing to address whether the police had reasonable grounds to believe that the accused should be detained as a flight risk. The summary conviction appeal court concluded that it would be unreasonable to conclude that the accused was a flight risk merely on the basis that he was attending university in the United States.

[66] The court in Jutras also held that the police had breached the accused's s. 10(b) rights by failing to provide him a further opportunity to consult with counsel after they decided to hold him for a show cause hearing. The court stated as follows:

….In the present case, Mr. Jutras was advised of the reasons for his arrest (for driving "over 80") and his initial detention (in order to provide a breath sample).

After he gave the breath sample, and after he spoke to duty counsel, the reason for his detention changed. The police decided to detain him as a flight risk, requiring him to attend a show cause hearing. Mr. Jutras was entitled to be advised clearly of the additional reason for his detention. I conclude, given the significant potential consequences to Mr. Jutras, he should have been cautioned of his right to counsel and given another opportunity to consult counsel when the police decided to detain him.

[67] In Jutras, the accused was detained for two days because he was not able to meet the terms of his release which required a surety. The court was critical of the assistance provided by duty counsel at the show cause hearing noting that no submissions were made as to the appropriateness of his detention. The court found that had the accused consulted with counsel, the issue of whether he was a flight risk or subject to the reverse onus bail provisions could have been raised before the Justice of the Peace, and that he may have been able to arrange for sureties earlier, sparing him a night in detention, and a second strip search. Ultimately in Jutras the court stayed the proceedings under section 24(1) as a result of the cumulative effect of Charter breaches, noting that the violation of section 11(b) of the Charter standing alone justified a stay.

[68] The Jutras decision predates the Supreme Court's decision in Sinclair which considered when an accused is entitled to a further contact with a lawyer after an initial consultation has taken place following an arrest or detention.

[69] In interpreting s.10(b) the Court in Sinclair looked to the purpose of the section, and found that the purpose of the right to counsel is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights". The court concluded that "the basic purpose" or the emphasis of the protection afforded by 10(b), in the context of a custodial interview, is on assuring that the detainee's decision to cooperate with the investigation or decline to do so is free and informed.

[70] The Supreme Court concluded that in most cases an initial warning, coupled with a reasonable opportunity to consult with counsel when the detainee invokes the right satisfies s. 10(b) of the Charter. The Supreme Court was of the view that the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right is "essentially a one-time matter with few recognized exceptions". The court held that an accused is entitled to further consultation with counsel only where a change in circumstances makes this necessary to fulfill s. 10(b)'s purpose of providing the detainee with advice in the new or emergent situation.

[71] The court explained that this principle has led to the recognition of the right to a second consultation with a lawyer where there is a material change in the detainees circumstances resulting from:

i.) new procedures involving the detainee;

ii.) a change in the jeopardy facing the detainee; or

iii.) reason to believe that the first information provided was deficient.

The categories are not closed, however, additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.

[72] In order to give guidance to the police, the court identified the types of situations that may trigger additional implementational duties. The court relied upon the expectations of counsel at the time of the initial interview, noting that advising counsel can be expected in an initial consultation to focus on the expectation that the police will seek to question the accused. The court found that where the police engage in non-routine procedures, such as polygraphs or photo-lineups, this may trigger a further obligation to facilitate consultation with counsel because such procedures will not be anticipated by counsel at the time of the initial consultation. The court further indicated that the failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct.

[73] In the context of an impaired driving investigation advising counsel can anticipate that the police will seek to question the individual and take breath samples from them, and can be expected to advise the accused in these areas. Similarly, at the time of the initial consultation, an advising counsel can expect that the police must make a decision about detention or release. Advising counsel will be aware that a decision to detain or release will be affected by many factors such as the degree of impairment of an individual, any prior criminal record, and any circumstances that may raise concerns that the accused will not appear in court as required. The detention or release process is a routine procedure, and one which advising counsel can anticipate at the time of the initial consultation.

[74] In this case there was no change in circumstances that would trigger a right to further consultation with counsel. As is commonly the case in unfolding investigations, the police had not made a decision about detention or release at the point of contact by the accused with duty counsel.

[75] Although the Court in Jutras concluded that the accused should have been given another opportunity to consult counsel when the police decided to detain him, in my view upon an application of the principles of Sinclair to the specific facts of this case, I am not satisfied that the police breached the Applicant's 10(b) rights by failing to give him a further opportunity to consult with counsel. There was no change in circumstances which entitled him to further consultation with counsel. To find otherwise, would run contrary to the Supreme Court's finding that the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right is "essentially a one-time matter with few recognized exceptions".

Is a Stay of Proceedings Appropriate for the Alleged Breaches of s. 9 and s.10(b)?

[76] If I am wrong in respect of either the lawfulness of the decision to hold the accused for a show cause hearing, or in respect of the duty of the police to provide further contact with counsel as a result of the decision to show cause, the alleged violations of s. 9 and 10(b) of the Charter, even in addition to the violation of the right to counsel of choice, do not warrant a stay of proceedings under section 24(1) of the Charter or the alternative remedy of exclusion of the breath samples under section 24(2).

[77] A stay of proceedings is an exceptional remedy. It is the most drastic remedy a trial judge can grant, and is appropriate only in the "clearest of cases". In Babos, the Supreme Court of Canada explained the types of misconduct that may warrant at stay:

This Court has recognized that there are rare occasions – the "clearest of cases" – when a stay of proceedings for an abuse of process will be warranted. These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category).

[78] In this case there is no suggestion that a stay is required to ensure a fair trial. The applicant alleges that a stay is required to protect the integrity of the judicial process.

[79] Where it is alleged that state conduct undermines the integrity of the judicial process a stay will only be available where:

(1) The prejudice to the integrity of the justice system "will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome; and

(2) No alternative remedy is capable of redressing the prejudice.

[80] Where it is unclear whether a stay is warranted after steps (1) and (2) the court must balance the interests in favour of granting a stay, such as denouncing Crown misconduct or preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits".

[81] The Supreme Court in Tobiass emphasized that the residual category of cases is small, and explained the above criteria as follows:

The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future … For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. .. The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well – society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.

[82] For a stay to be appropriate "it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice".

[83] When the residual category is invoked, the first question is whether the state has engaged in conduct that would harm the overall integrity of the justice system if the matter proceeded to trial. There is simply no evidence upon which I could conclude that the prejudice to the integrity of the justice system will be manifested, perpetuated, or aggravated through the conduct of a trial in this case. There is no evidence that the problem giving rise to the stay application is systemic in nature. This is not a case involving the application of a force-wide policy that failed to accommodate the individualized circumstances of a detainee. This is not a case like Zarinchang where, for a period of 24 days, the court was unable to accommodate the accused's bail hearing due to a failure of the system to provide sufficient resources for a bail hearing to be held in a timely manner, and where the court concluded that there was a systemic failure of the bail system in York Region that would continue to affect others in the future unless some appropriate action was taken. Notably, in Zarinchang, even in the face of such findings the Court of Appeal concluded that "the question that arises is whether continuing the prosecution against the respondent in this circumstance would create prejudice to the system of justice that warrants the use of a stay. In our view, there is an element of uncertainty about this question".

[84] The second question is whether any alternative remedy to a stay is available. The remedial goal is not to provide redress to the accused for a wrong that has been done to him or her in the past. Rather, the focus is on whether an alternative remedy short of a stay of proceedings "will adequately dissociate the justice system from the impugned state conduct going forward". I find, as have a number of other courts, that if there were breaches of s. 9 and 10(b) due to non-compliance with s. 498(1.1)(b) that a reduction in sentence or declaration of a Charter breach are alternative and more appropriate remedies.

[85] Finally, in my view while there is no uncertainty as to whether a stay is warranted, if any uncertainty did remain, the third criterion, the traditional balancing of interests, heavily tips the scales in favour of the case being decided on the merits and against a stay of proceedings:

• Operating a motor vehicle while over the legal limit poses a serious risk to the community and society has a significant interest in such allegations being tried on the merits. Drinking and driving offences often cause tragic consequences and continue to be one of Ontario's most significant road safety issues.

• As noted earlier, this was not a case involving the application of a force-wide policy that failed to accommodate the individualized circumstances of a detainee, rather it was a fact specific incident, where the police, at most misapprehended the sufficiency of the grounds to detain for a show cause hearing.

• The Applicant is 25 years old and has no prior criminal record. However, based on the evidence of the breath readings he was driving with twice or approaching twice the legal limit of alcohol in his system.

• The effect of non-compliance with section 498(1.1) is that the Applicant was held for an additional eight hours, between approximately 5 a.m. and 1 p.m. During this time the Applicant was not subjected to invasive procedures, such as a strip search. The prejudice suffered by the Applicant attributable to a s. 9 breach is "measured in a delay of a few hours", and is "exacerbated by complaints of s. 8 violations or physical oppression or discomfort".

[86] Cases alleging a breach of s.9 as a result of overholding engage many of the same considerations as this case. Appellate courts have consistently held that a judicial stay of proceedings is not an appropriate remedy in circumstances of overholding where the alleged conduct is post-offence and post-investigation. In Iseler the Ontario court of Appeal concluded that a stay was not appropriate on the basis that trial fairness was not implicated, and that although the police conduct was improper, the s.9 breach occurred post-offence and after the investigation and gathering of evidence had concluded.

[87] In all of the circumstances, if, in addition to the breach of the right to counsel of choice, there was also a breach of s.9 and 10(b) related to the detention of the accused pursuant to section 498(1.1), I am not satisfied that the exceptional remedy of a stay of proceedings is required. This is not one of the "clearest of cases" where a stay is required to protect the integrity of the judicial process.

[88] In respect of the alternative remedy of the exclusion of the breath samples under section 24(2) for the alleged breaches of s. 9 and related s. 10(b) breach, I am not satisfied that the breath samples were "obtained in a manner" that infringed or denied the s. 9 rights of the Applicant. I make this finding recognizing that in Pino, the Court of Appeal held that the fact that evidence was gathered prior to the alleged breach may not foreclose a finding that evidence was "obtained in manner" that infringed or denied the applicant's Charter rights. However, as in Kavanagh I find that the decision of P.C. Racco to keep the Appellant in custody, was not part of the transaction that generated the Intoxilyzer results. There is not a sufficient causal, temporal, or contextual connection between the Intoxilyzer results and the subsequent decision to detain the Applicant in custody on the basis of s. 498(1.1)(b). The applicant has failed to establish that the breathalyzer readings should be excluded as a remedy under section 24(2).

Conclusion

[89] The applications for a stay of proceedings under section 24(1) of the Charter, and the exclusion of evidence under section 24(2) of the Charter are dismissed. The parties agree that if the applications are dismissed a conviction should follow, and, as a result, Mr. Rossi is found guilty of the offence of operating a motor vehicle while his blood alcohol content exceeded 80 mg per 100 ml of blood.

Released: June 30, 2017

Signed: Justice Marcella Henschel