Court Information
Ontario Court of Justice
Date: August 4, 2017
Court File No.: Brampton 16-12459
Parties
Between:
Her Majesty the Queen
— And —
Kerri Klotz
Before
Justice Louise A. Botham
Heard on: March 1, 2017 and July 7, 2017
Reasons for Judgment released on: August 4, 2017
Counsel
P. Quilty — counsel for the Crown
A. Little — counsel for the accused Klotz
Judgment
BOTHAM J.:
Facts
[1] Kerri Klotz is charged with over 80. On September 30, 2016, she was stopped at a RIDE stop check at 2:50 a.m.
[2] Cst. Halfyard had set up the RIDE spot check for traffic exiting from the QEW to Erin Mills Parkway. The curb lane was blocked by his cruiser and the middle lane was blocked with activated emergency lights.
[3] Cst. Halfyard testified that he explained to Ms. Klotz why she had been stopped. He could smell alcohol on her breath. He asked her when she had had her last drink and she said "a long time ago." He asked her for her driver's license, she presented him with a temporary license. He told her to hand over her cell phone. His note book entry on that point, reads "female's phone taken prior to pulling over."
[4] The officer explained that "I find in my experience that people when they don't have some sort of identification with a photo on them that I can satisfy, sometimes they're suspended or perhaps they're disqualified drivers. I find that and I've had it happen before, where these people have taken off on me. So it's basically just something for me to have as more incentive for them to pull over…" The officer conceded that he knew that he had no legal authority to seize Ms. Klotz's phone but that it is just something "I've kind of done just to make sure that someone is compelled - more compelled to pull over and not take off on me."
[5] He then had Ms. Klotz park her car on the side of the road. She was then told to sit in the officer's police cruiser, where the road side test was administered.
[6] The officer testified that sometimes he performs the roadside tests at the side of the road and sometimes he places the subject in the back of his cruiser. He testified that given the location he had chosen for the RIDE stop, namely a QEW off ramp that he believed it would be safer to do the test within his locked cruiser. Although he initially claimed that he also required Ms. Klotz to be seated in the cruiser so that he could run computer checks, he later conceded that even if he had not done any computer checks, she would have been detained in his cruiser because of the location.
[7] At 2:54 a.m. she registered a fail. He arrested her for over 80 and at 2:57 a.m. he read her rights to counsel. When asked if she wished to call a lawyer now - she replied 'I would, I wouldn't know who to call….my mom would." He read the breath demand as well as cautioning her and they drove to a police station.
[8] They were in the booking area at 3:14 a.m. and shortly afterwards the officer called Ms. Klotz's mother and left a message on what he understood to be her cell phone and her work phone.
[9] At 3:17 a.m., he asked Ms. Klotz if she had any other numbers for her mother and she replied "No that's the only one that I can think of to use" and then he asked her "Do you have a lawyer" and Ms. Klotz replied "she would have the information for that, I don't know."
[10] The officer had then noted "question duty counsel/explained answer ok" and he testified that in fact he then explained to her "if your mother calls back at any point in time, yes, we'll talk to her, see if she has contact information for a lawyer or somebody who may…. However, I do have a duty to get the test done as soon as practicable. So as a result of that your other option is duty counsel. This is what they are, this is what they do. Is that somebody that you would like to contact?"
[11] The officer agreed in cross-examination that at no time did he offer Ms. Klotz the option of either looking through a phone book or searching the internet to see if she could locate a lawyer. He agreed that since she did not have her own lawyer and had not heard back from her mother, the only other option presented to Ms. Klotz was duty counsel. The officer agreed that it was the policy of Peel Regional Police that an individual in custody cannot use their cell phone or a phone at the police station to call counsel themselves.
[12] He called duty counsel and the defendant spoke to duty counsel.
[13] Prior to Ms. Klotz being handed over to the breath technician, she was searched as part of the booking process.
[14] Cst. Samms a female officer was the search officer. She testified that she took Ms. Klotz into another room and stood behind her, feeling up and down each leg and around her torso as well as up and down her arms. Ms. Klotz was required to remove her boots and her feet were checked. She did not remove or displace any of Ms. Klotz's clothing to search any private areas or genitalia. She acknowledged that that would be considered a strip search and would require the permission of a supervisor.
[15] It was not clear to me the degree to which Cst. Samms had an independent recollection of her search of Ms. Klotz. She had made no notes of the incident but as the booking officer that night, she knew that she would have searched any females who came into custody. She had reviewed portions of the video footage relating to Ms. Klotz's booking and it was clear at times that her evidence was being given from her review of that footage, rather than an actual recollection. In her initial evidence she had said that Ms. Klotz had removed her boots at the end of the search but in cross-examination she acknowledged, upon viewing the video footage, that the boots were placed outside the search room at the beginning of the search, not the end. She agreed that the video footage of Ms. Klotz after the search was completed showed a degree of dishevelment of her clothing but disagreed that that had occurred because Ms. Klotz's top had been removed.
[16] Ultimately Ms. Klotz provided two breath samples which were both over the legal limit. She was served with the appropriate documents at 4:34 a.m. and she was released shortly afterwards.
[17] Ms. Klotz testified with respect to the Charter issues raised by the defence. She confirmed that she, not surprisingly, did feel she had to provide her cell phone to the officer when told to do so. She also testified that she agreed to speak to duty counsel because she felt she had no other option to obtain legal advice when the officer could not reach her mother and that, if offered, she would have availed herself of the opportunity to locate a lawyer on her own. She contradicted Cst. Samms evidence with respect to the manner in which she was searched at the police station.
[18] She testified that she was wearing a light weight hoodie with a tank top and bra underneath. She was taken into a room and told to remove her boots and her hoodie. She recalled that the door was open at this point and remained open during the entire search. She was told to turn her pant pockets inside out and to turn and face the wall. At that point she had nothing covering her arms and although she agreed that Cst. Samms did pat her legs and torso in the manner described by the officer, she disagreed that her arms were patted down since they were bare. She was told to lift up her shirt and shake her bra out to show that there was nothing inside. She lifted her shirt to the bottom of her bra and grabbed the underwire and moved it up and down to show that nothing was concealed. She could feel that her breasts were exposed at that time and she felt humiliated. She was told then to put her hoodie back on, which she did, and then she came back out of the room. Although Ms. Klotz believed that the door to the search room had been open the entire time, it was clear upon viewing other video footage that it was closed shortly after the women entered the room.
Legal Analysis
Charter Breaches
[19] The defence concedes that the evidence called by this crown is sufficient to prove this charge. However, the defence submits that the applicant's Charter rights were infringed by the manner in which the investigation was carried out and that the evidence of the applicant's blood alcohol level at the time of driving should be excluded.
[20] The seizure of Ms. Klotz's breath samples is a warrantless search and the Crown bears the onus of establishing that it was lawful.
[21] Cst. Halfyard had grounds to make the roadside screening demand and grounds to make the subsequent breath demand, given the FAIL registered on that device. However, the defence submits this otherwise lawful seizure became unlawful, given the manner in which the police managed this investigation.
Section 9 Charter Right — Arbitrary Detention
[22] Although there existed grounds to compel Ms. Klotz to provide a sample of her breath into a road side screening device, the manner in which that test was carried out was not reasonable. Cst. Halfyard justified his decision to secure Ms. Klotz in the back of his cruiser prior to administering the ASD on the grounds that it would have been unsafe to have conducted the test on the side of the road.
[23] The Supreme Court of Canada in the 2012 decision of R. v. Aucoin, 3 SCR 408, considered the lawfulness of an officer's decision to secure Mr. Aucoin in the rear of his cruiser in order to complete the paperwork associated with a traffic ticket, Moldaver, J. writes at para 34 to 35:
The problem in this case ... flowed from [the officer's] decision to secure [Aucoin] in the rear of his cruiser while he wrote up the ticket for the motor vehicle infractions. That decision carried with it increased restrictions on the appellant's liberty interests, and ... in my view, altered the nature and extent of the appellant's detention in a fairly dramatic way ...
To be clear, I do not see this case as turning on whether [the officer] had the authority to detain [Aucoin] in the rear of his police cruiser, having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case. [Emphasis added.]
[24] The court in Aucoin confirms that the s. 9 Charter protections against arbitrary detention extend beyond simply the basis for the initial decision to detain and include an assessment of the manner of that detention.
[25] I have considered whether there were other reasonable methods by which the officer could have addressed his concerns about conducing an ASD test on the side of a busy road.
[26] One which springs to mind would have been to have positioned his spot check a short distance down the road so he would not have been right in the flow of the exiting traffic and another, suggested by defence counsel, would have been to simply conduct the test on the other side of his cruiser, so both of them would have been protected from passing traffic. Instead, he chose to conduct this test and it would seem any other possible screening tests that evening in his cruiser solely on the basis of a location which he had chosen and did not turn his mind to whether or not a less restrictive manner of detention would have been possible.
[27] I am satisfied that the officer's decision to conduct the roadside testing of Ms. Klotz inside his cruiser was not reasonably necessary and did constitute a breach of her s. 9 rights.
Section 10 Charter Right — Right to Counsel
[28] Police have a duty to facilitate an accused person's decision to consult with counsel of choice.
[29] In this case, the arresting officer determined that there were two options open to any accused who wished to exercise their rights to counsel either contact with a lawyer known to the accused or accessible through a third party and duty counsel.
[30] Ms. Klotz has testified that she would have preferred to speak to counsel of her own choosing and that she felt the advice she received from duty counsel was perfunctory. She testified that if she had been told she could search for counsel, for example on the internet, she would have done so. In R. v. Panigas, (2014) O.J. No 2058 O.C.J., Justice Horkins wrote with respect to the policy of the Toronto Police Services which also does not allow detainees to make any calls on their own that: "Because the police have taken it on themselves to be the exclusive conduit to legal advice, it is essential in my mind that they explain very carefully that the accused has options at this point in the process. It must be carefully explained that speaking to the provided duty counsel is not their only choice. The accused has the right to wait a reasonable time for counsel of his or her own choosing to call back. The accused also has a right to try to contact any number of private lawyers, not just the one that has failed to call back promptly." In that case, Justice Horkins found that "the police, by virtue of following the standard practices of the local police service, effectively channeled this accused into accepting a consultation with the on-call duty counsel that had been provided by the police, as opposed to diligently facilitating access to counsel of the accused's own choice as he had requested early in the investigation" and determined that the accused's s. 10 rights had been breached.
[31] This line of reasoning has been followed in cases from this jurisdiction, R. v. Maciel, 2016 ONCJ 563, R. v. McFadden, (2016) O.J. No 6932 and R. v. Paul, (2017) O.J. No 2593.
[32] The fact that the taking of breath samples may be delayed by a detainee's attempt to contact counsel of their choosing, cannot displace that person's right to do so. (See R. v. Prosper (1994), 3 SCR 236 SCC). That does not mean of course that at some point where efforts to contact counsel of choice have been unsuccessful that a detainee may not be required to resort to duty counsel. (See: R. v. Richfield (2003), 178 CCC 3d 23 (Ont. CA)). But duty counsel cannot become the defacto default position. Cst. Halyfard's evidence that he told Ms. Klotz that since he had a duty to get the test done as soon as practicable, duty counsel was her only other option and that he did so less than 3 minutes after leaving a message for her mother suggests that he erroneously believed that her ability to consult with counsel of choice could unilaterally be trumped by the police desire to have the tests taken as soon as possible. As it was, Ms. Klotz was released from the station, shortly after 4:34 a.m., seemingly within 2 hours from her initial roadside detention at 2:50 a.m.
[33] I am satisfied that that there was a breach of Ms. Klotz's right to consult with counsel of her choice by virtue of what appears to be the policy of the Peel Regional Police Force and certainly Cst. Halyfard's understanding of his informational and implementational duties with respect to an accused's s. 10 rights.
Section 8 Charter Right — Unreasonable Search
[34] Ms. Klotz has testified and described a search by Cst. Samms that would constitute a strip search. I accept her evidence on that point. In considering what weight to give the contradictory evidence of Cst Samms, I have concerns with respect to her assertion that she has an independent recollection of what occurred that evening. She had made no notes with respect to her dealings with Ms. Klotz. Until she was subpoenaed for trial I would assume there was no reason for this matter to have had any particular significance to her. It was clear when she testified that portions of her evidence were derived from her viewing of the booking video, rather than her independent recollection of the matter. I am satisfied that Ms. Klotz's upper clothing was removed and that she was required to expose her breasts.
[35] Justice Watt recently, in R. v. Gonzales, 2017 ONCA 543, reviewed, at paras. 134 to 139, the law relating to strip searches. To summarize, the search must be related to the reasons for arrest, for example where the offence involves possession of contraband and the purpose of the search is to discover potential contraband. Strip searches are not to be carried out as an inevitable consequence of every arrest. There must be reasonable and probable grounds to justify such a search and therefore the mere possibility that a detainee may be concealing evidence is not sufficient to justify a strip search.
[36] There is no issue that Ms. Klotz was searched that evening. The Crown has not established that such a search was reasonable under the circumstances. I am satisfied that Ms. Klotz's s. 8 rights were breached.
Exclusion of Evidence
[37] I am not certain that either the s. 9 or s. 10 breach, standing alone would necessarily have led to an order excluding the results of Ms. Klotz' breath tests from the evidence at this trial. The detention in the police cruiser was brief and there was a lawful basis to detain her for the provision of breath samples. She was able to consult with duty counsel and receive legal advice, albeit she believed she would have more fully been able to exercise her right to obtain legal advice if she had chosen her own counsel.
[38] However, the cumulative effect of all three breaches speaks to a pattern of Charter infringing state conduct which in and of itself renders the police behaviour more serious. Although the seizure of Ms. Klotz's phone was not the subject of a Charter complaint, it was a warrantless seizure and the officer conceded that he knew he had no basis to demand the phone but he simply makes it a practice to do so when he investigates drivers who do not have photo identification.
[39] Although aware that detainees can be allowed to participate in road side screening tests on the side of the road, he chose not to and chose not to consider if there was a less restrictive manner to conduct the test.
[40] The Peel Regional Police have determined that there are two methods by which a detainee can obtain legal advice, contacting a counsel for which they have a name or a contact person with that information and duty counsel. The practice of the force is not to allow a detainee to search for counsel. That flies in the face of long established s. 10 case law.
[41] The explanation given to Ms. Klotz that there was a certain urgency to the need to obtain breath samples and therefore since her mother had not answered, the only alternative was duty counsel again shows a lack of understanding or adherence to well established principles.
[42] Finally, I am satisfied that Ms. Klotz was required to remove clothing to show the officer that she had nothing concealed in her bra, in contravention of the force's apparent rules regarding the conducting of strip searches and again contrary to well established law. I consider the cumulative effect of these breaches to be serious and to support an order for exclusion.
[43] The impact on Ms. Klotz's protected Charter rights was significant, especially as it relates to an impairment of her ability to exercise her right to consult with counsel of choice and the affront to her personal integrity when she was subjected to an unwarranted strip search.
[44] As always, society has an interest in having matters adjudicated on their merits and an order excluding the evidence of the results of the breath samples seized from Ms. Klotz will result in an acquittal. However, when I consider the seriousness of the cumulative breaches, coupled with the impact of those breaches on Ms. Klotz's Charter protected interests, I am satisfied that both the first and second branches of the Grant test support an order for exclusion and that the long term interests of the administration of justice are best served by such an order.
Released: August 4, 2017
Justice Louise A. Botham
