Court File and Parties

Court File No.: 16-222 Orangeville Date: August 31, 2017 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Binesh Malik

Before: Justice Richard H.K. Schwarzl

Heard on: June 5 and 16, 2017 Reasons released on: August 31, 2017

Counsel:

• Ms. Jane Rodger for the Crown
• Mr. Barry Fox for the Defendant

SCHWARZL, J.:

SECTIONS 9 & 12 CHARTER RULING

1.0: INTRODUCTION

[1] Both parties to this case agree to the following: that shortly after 2:00 a.m. on February 12, 2016 the Defendant, Mr. Binesh Malik, was driving over the speed limit and was stopped by P.C. Walli; that the Defendant's breath smelled of alcohol, his eyes were red, and he fumbled with some documentation; that the officer escorted the Defendant back to his cruiser for the purposes of administering a roadside alcohol screening test; that the Defendant failed the test and was taken to the police station to provide breath samples into an approved instrument for analysis; that the results of the breath test revealed that the Defendant had a blood alcohol concentration of 130 milligrams of alcohol per hundred millilitres of blood; and that just shy of three hours after the breath test procedure was complete, the Defendant was released on a Promise to Appear without conditions.

[2] The only issue in this case is whether the Defendant's constitutional rights to be free from arbitrary detention and to be free from cruel and unusual treatment were violated by the police. For the reasons set out below, I find that the Defendant has not met his onus to show that either of these rights were probably breached. Even if he had met his burden, this is not the clearest of cases to grant a judicial stay of proceedings for these two claims.

2.0: RELEVANT FACTS

[3] The weather was very cold at the time of this investigation being -14°C with a wind chill of -35°C. The Defendant was wearing a suit and overcoat. When he complained of being cold while seated in the police car, the officer turned up the temperature. After being arrested the officer loosened the handcuffs when the Defendant said that they were too tight.

[4] When the Defendant was brought inside the police station for investigative purposes at 2:40 a.m., he was searched on the main floor of the station. As part of his search the Defendant was required by the officer in charge of the investigation, P.C. Walli, to remove his overcoat, scarf, suit jacket, collared shirt, jewelry and watch, shoes, and belt. P.C. Walli was satisfied that in the circumstances, the Defendant did not possess any weapons or means of escape and that he was not at risk to harm himself or others.

[5] For the four hours between the search until his release at 6:40 a.m. the Defendant was wearing only his socks, trousers, and undershirt. All police officers at the same time were wearing full uniforms with long sleeves and armoured vests. One officer, the qualified intoxilyzer technician P.C. Bucsis, also had a sweater on which he later took off because he felt too warm in the cell area.

[6] After being searched, booked, and exercising his right to speak to a lawyer, the Defendant was brought into the breath testing room until that process ended at around 3:45 a.m. The breath room, like the booking area, is also on the main floor. At no time whilst on the main floor did the Defendant complain to anyone, nor did it appear to anybody, that he was cold, uncomfortable, or otherwise physically distressed.

[7] The temperature of the Caledon OPP station is set at 72°F (which is 22°C). The holding cells are in the basement of the station which is naturally cooler than the rest of the building. Each prisoner cell is equipped with its own in-floor heater that can be individually controlled by a guard, monitor or officer. The heat of the cell is usually turned on when it becomes occupied.

[8] After the breath tests were completed, the Defendant was taken into the station basement and lodged in a cell for three hours before being released. For reasons unknown, the heater for his cell was not turned on. The civilian monitor looking after the Defendant was wearing a sweater with a hood. P.C. Walli placed the Defendant in the cell. The prisoner was wearing only his socks, pants, and tee shirt. P.C. Walli followed the Ontario Provincial Police Prisoner Care and Control policy which states, "Any article that may facilitate escape/injury/suicide, the defacing of property/the setting of fires shall not be left with the prisoner during confinement. This may include mattress blankets if, in the opinion of the [officer] concerned, doubt exists as to the prisoner's mental/emotional condition. Such articles/other personal property belonging to the prisoner shall be placed in a safe secure storage area which is inaccessible to the prisoner for the duration of custody." P.C. Walli believed that the prisoners should be in the cells with the lowest form of clothing they have, which in this case was the socks, pants, and undershirt of the Defendant. Although P.C. Walli didn't have any immediate safety or other concerns about the Defendant, he did not want to take any chances by deviating from the policy he was trained to use.

[9] The Defendant quickly became cold when sitting or standing because the cell is made of concrete. It was obvious from the evidence that the cell occupied by the Defendant was cooler than the rest of the building. On three occasions between roughly 4:00 and 6:00 a.m. the Defendant asked the civilian monitor for a blanket and for somebody to call his wife. The Defendant was told by the monitor that the information would be passed along to an officer. At 6:00 a.m. an officer (not P.C. Walli) brought the Defendant a short blanket. He put it on but continued to be cold until brought upstairs. No one called the Defendant's wife prior to his release.

[10] The investigation of the Defendant was completed at 3:50 a.m. The qualified breath technician provided P.C. Walli with some necessary documentation he prepared. P.C. Walli, who was a brand new officer, took about two and three-quarter hours to prepare other necessary documentation including a statutory temporary licence suspension, car impoundment documents, plus release documents as well as his investigation notes. During that time, the officer also removed some of his equipment and property from his police car before moving it out of the sally port. P.C. Walli explained that because he was new and was assisted by a coach officer it took longer for him to complete the necessary paperwork before releasing the Defendant. P.C. Bucsis, the qualified intoxilyzer technician and a very experienced officer, stated that it is not unusual for him to take up to two hours to prepare a case file before releasing a prisoner. He also said that it can take longer for a new officer to complete the same tasks.

3.0: POSITIONS OF THE PARTIES

3.1: The Defendant

[11] The Defendant submits that he was subjected to cruel and unusual treatment by being kept in a cold cell for three hours while unnecessarily underdressed and being without a blanket for all but the last forty-five minutes.

[12] The Defendant also submits that the Defendant was unjustifiably detained after the investigation was complete. He submits that even taking into account the inexperience of the P.C. Walli that the modest duties and paperwork involved should have meant a release much earlier than a three hour wait.

[13] In considering the situation as a whole the Defendant submits that he was treated with callous indifference to his welfare and with unjustifiably negligent inattention by the police to their duties. He submits that nothing less than a stay of proceedings will suffice as a remedy.

3.2: The Crown

[14] The Crown submits that in the circumstances of this case where the police could have turned the heat on in his cell, provided a blanket sooner, and given him more clothes to wear the Defendant was not treated either cruelly or unusually.

[15] The Crown further submits that while in a perfect world the Defendant could have been released sooner, the post-offence detention of the Defendant for three hours was not arbitrary within the meaning of the law.

4.0: ANALYSIS

4.1: Was the Defendant treated cruelly or unusually?

[16] With respect to the treatment of the Defendant in the station, I cannot find that he was treated cruelly or unusually. No citizen looking at the situation as a whole and rationally would be outraged nor find the Defendant's treatment abhorrent or intolerable. Most people, including myself, would find the treatment of the Defendant fair but uncomfortable or inconvenient while in the holding cell awaiting release. The Ontario Provincial Police prisoner care and control policy is designed to reduce the risks of injury to a prisoner and damage to station property. The policy is both rational and appropriate. I find that P.C. Walli reasonably followed the policy by reducing the Defendant's clothing and property to a minimum during a modest period of confinement. Just because the Defendant was not obviously suicidal or apparently desirous of escape or causing damage, it was appropriate to reduce the already low risk should the Defendant's attitude shift while in the cell. The police did not know him, and sometimes people like the Defendant who are in stressful situations while under the influence of alcohol can do unpredictable and unsafe things.

[17] At worst the cell area was cold and discomforting for the Defendant for a relatively short time. The Defendant was never injured, nor was his health at risk. He was not exposed to danger. Nor was his basic human dignity threatened or undermined. He was, after three quarters of his confinement, provided with a blanket. While his requests may have been delayed or neglected for a time, the Defendant was never abused, misused, tormented, or treated in anything but a civil manner. Although the Defendant was clearly uncomfortable in the cells, this falls far short of being treated either cruelly or unusually.

[18] The Defendant's application for a finding that his section 12 Charter right was violated is dismissed as he has failed to prove his claim on a balance of probabilities.

4.2: Was the Defendant arbitrarily detained after the investigation was complete?

[19] With respect to the matter of not releasing the Defendant until three hours after the last breath test, the police had a duty to release him as soon as practicable unless they had reasonable grounds that it was necessary in the public interest that the Defendant be detained. In this situation, the police never considered it necessary for any reason to detain the Defendant any longer than the time it would take to complete all investigative and administrative aspects of the case. Therefore, there was no need for the police to consider factors such as the Defendant's record (if any), the availability of someone to pick him up, or whether he needed to sober up before being released.

[20] Furthermore, the release of the Defendant was achieved as soon as practicable. The phrase "as soon as practicable" means "within a reasonably prompt time in all of the circumstances" and does not mean either "immediately" or "as soon as possible."

[21] In this case, the police acted reasonably promptly. At all times P.C. Walli, who was also the releasing officer, was alive to his duty – and desire – to release the Defendant as soon as he could. P.C. Walli was a new officer and this was his first drunk driving investigation. It is not surprising at all that P.C. Walli took longer to gather case materials (certificates and other documents) from other officers, prepare his notes, and then identify, obtain, complete, and review all the necessary release materials as it was his first time doing all these things. Everything he did was under the supervision of a coach officer and no doubt had questions for his coach and had his work checked for accuracy and completeness. P.C. Walli owed it to the Defendant and to the public to do his work right. Allowing for his inexperience, the time taken to release the Defendant was in line with what P.C. Bucsis described as a typical two hour process.

[22] Furthermore, the duration of three hours for post-offence detention was modest and in no way draconian or punitive. Such a wait does not make the delay in release prima facie unreasonable. In addition, the conduct of the police was never arbitrary insofar as it was never capricious, tyrannical, or without care or thought for the Defendant. To the contrary, while P.C. Walli may have been slow, he was always conscious of, and attentive to, his duties towards the release of the Defendant.

[23] While the police did not release the Defendant at the earliest possible moment, they did release him reasonably promptly in the totality of the circumstances set out herein. The Defendant has failed to establish that his right guaranteed by section 9 of the Charter was breached.

4.3: Is a judicial stay of proceedings appropriate if one or both rights were breached?

[24] Even if I am wrong and one or both of the Defendant's rights were violated, this is not the clearest of cases to impose a judicial stay of proceedings. Nothing in the way the police acted towards the Defendant was egregious or shocking to the public conscience so as to justify me terminating the prosecution. The police treated the Defendant respectfully, professionally, and in accordance with their legal duties and reasonable police policies. There is no evidence of personal apathy or ignorance by any officers involved in this case. To the contrary, they appeared to act with reasonable diligence. There was no evidence about the frequency of unjustified post-offence detention by the police in this jurisdiction so as to be able to assess, let alone make, any findings of institutional or systemic bad faith. Nothing done (or not done) by the police caused damage, irreparable or otherwise, to the Defendant's ability to make full answer and defence. If there was a breach of the Defendant's rights by the police, a stay of proceedings would be a grossly disproportionate remedy in the totality of the circumstances of this case.

5.0: CONCLUSION

[25] The Defendant has failed to establish that his rights under sections 9 and 12 of the Charter were breached. Even if he had done so on either or both, a stay of proceedings is not an appropriate remedy.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice