Court File and Parties

Court: Ontario Court of Justice

Date: September 28, 2017

Court File No.: Midland Information No. 15-0595

Between:

Her Majesty the Queen

— AND —

Lana Woychyshyn

Before: Justice C.A. Parry

Heard on: October 19 and 20, 2016

Reasons for Judgment released on: September 28, 2017

Counsel:

Frank Giordano, for the Crown

Anthony Andreopoulos, Counsel for the defendant Lana Woychyshyn

Reasons for Judgment

PARRY J.:

A. OVERVIEW

[1] Lana Woychyshyn stands charged with two offences:

(1) Operating a motor vehicle while her ability to do so was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code; and

(2) Operating a motor vehicle while the concentration of alcohol in her blood exceeded 80 mg of alcohol in 100 ml of blood.

[2] The date and time of the alleged offences is January 25, 2015, at approximately 4:14 p.m.

[3] Ms. Woychyshyn brings an application pursuant to the Charter of Rights and Freedoms, to exclude evidence obtained during the course of various alleged Charter breaches. As originally framed, the Charter application alleged breaches of sections 9, 10(a), and 10(b) of the Charter. During the course of evidence and submissions, it became apparent that the Charter complaint necessarily and incidentally also included an allegation of an infringement of section 8 of the Charter. In short, Ms. Woychyshyn alleges that the police arbitrarily detained her; that the police failed to properly inform her of the reason for her detention; that the police failed to advise her of her right to counsel immediately upon her detention; and that during the course of the arbitrary detention the police conducted an unreasonable search pursuant to an invalid arrest.

[4] The trial commenced on October 19th, 2016, and continued on October 20th, 2016. With the agreement of the parties, the court first heard evidence on the Charter voir dire, with the understanding that the evidence called by the Crown, would, if found to be admissible, form part of the Crown's case at trial. In the voir dire, the Crown called Sgt. Harker [the investigating officer] and Constable Gowlett; the defence called Ms. Woychyshyn. As part of its case on the trial proper, the Crown also called a forensic toxicologist, Dr. Langille, to extrapolate from the breath readings at the police detachment and provide an opinion about Ms. Woychyshyn's blood alcohol concentration at the time of driving. The Crown made thorough submissions, but the defence did not have an opportunity to make submissions before the end of the day on October 20th.

[5] The matter was adjourned for trial continuation on March 8, 2017. Unfortunately, counsel for Ms. Woychyshyn did not provide his written submissions until March 1st, about 3 months after the deadline mandated by the court. Consequently, the continuation of the matter was postponed, so as to allow the Crown to serve and file its written reply submissions. The matter is now set to resume on September 28, 2017, which I am told was the earliest date convenient to all counsel and the court. In the interim, I sought further written submissions on sections 199, 200, and 217 of the Highway Traffic Act; and the validity of the decision to arrest Ms. Woychyshyn for failing to remain at the scene of an accident. Those further written submissions were received July 14, 2017.

B. SUMMARY OF THE FACTS

1. The Evidence of Sgt. Harker

[6] Sergeant Harker was an officer with the South Georgian Bay OPP detachment. He had been an officer for 25 years.

[7] On January 25, 2015, at about 4:14 p.m., while on routine patrol, he observed Ms. Woychyshyn operating her Nissan Murano, which had significant front end damage. The front bumper was hanging down and dragging on the roadway; and the front left tire had a wobble. Accordingly, the vehicle appeared unsafe to drive.

[8] At the time Sgt. Harker first saw her driving, Ms. Woychyshyn was turning onto Deanlea Blvd in the Township of Tiny. She was driving into a small cottage subdivision in the vicinity of Bluewater Beach. After turning onto Deanlea Blvd, Ms. Woychyshyn made the next turn onto Rosemary Road. Ms. Woychyshyn then turned into her own driveway at 15 Rosemary Road, which was a short distance from where Sgt. Harker originally noticed her vehicle.

[9] Sgt. Harker followed Ms. Woychyshyn and noticed that she was driving somewhat slowly in this small subdivision, perhaps 20 km/h. He activated his emergency lights as Ms. Woychyshyn was in the process of arriving at her home. He then parked his cruiser behind Ms. Woychyshyn's vehicle, approached the driver's side door, and knocked on the window. He attempted to open the driver's door, but due to the damage suffered by the vehicle, the door would not open. He noticed at this juncture that Ms. Woychyshyn had moved to the passenger's seat of the motor vehicle.

[10] Sergeant Harker walked around Ms. Woychyshyn's car and opened the passenger's side door. He asked Ms. Woychyshyn about her reason for moving to the passenger's side of the vehicle but she gave him no response.

[11] Sergeant Harker then noticed a 1.14 litre bottle of Jack Daniels on the floor of the vehicle near her feet. He questioned her about it. In response, she handed him the bottle and told him the bottle was empty. However, in reality, the bottle was full.

[12] Sergeant Harker then asked Ms. Woychyshyn for her driver's licence. Ms. Woychyshyn fumbled with her purse, then removed her wallet, retrieved the driver's licence, and handed it to Sgt. Harker. Ms. Woychyshyn then told Sgt. Harker that she was a police officer and suffering from post-traumatic stress disorder ("PTSD").

[13] One of Sgt. Harker's former co-workers suffered from PTSD. That co-worker shot himself at Sgt. Harker's detachment four years earlier. As a result, Sgt. Harker was concerned for Ms. Woychyshyn's well-being, given her employment as a police officer and her access to firearms through her employment.

[14] Sergeant Harker observed that Ms. Woychyshyn appeared quiet, provided one word answers, appeared as if she had been crying recently, and appeared upset. He asked Ms. Woychyshyn if she had consumed any alcohol, to which she replied "no". From his position outside of the motor vehicle, he could not smell the odour of an alcoholic beverage coming from her breath, or from the vehicle for that matter. In total, he spent a few brief minutes speaking to Ms. Woychyshyn from outside the passenger's side of her vehicle.

[15] Sergeant Harker then asked Ms. Woychyshyn to come to his cruiser. He wanted to place Ms. Woychyshyn into a self-contained environment, to assist in determining whether or not he could detect an odour of alcohol emanating from Ms. Woychyshyn. On a related front, he also wanted to continue his investigation into the motor vehicle accident in which Ms. Woychyshyn had been involved. Sgt. Harker also continued to be concerned about Ms. Woychyshyn's emotional well-being, having regard to her comment about PTSD. Given the extremely cold weather, Sgt. Harker concluded that his cruiser was the most logical location in which to further his inquiries. Once inside the back seat of Sgt. Harker's cruiser, Ms. Woychyshyn was locked in.

[16] After placing Ms. Woychyshyn in the back seat of his cruiser, Sgt. Harker sat in the front of the cruiser. He was not able to smell the odour of alcohol emanating from Ms. Woychyshyn as he questioned her about the accident. This initial questioning in the cruiser had multiple objectives. On one level, Sgt. Harker was investigating the possibility of the commission of a criminal driving offence: impaired driving. In this regard, he was looking for evidence of alcohol consumption. On another level Sgt. Harker was fulfilling his duty to prepare a Motor Vehicle Collision Report. He was also investigating the possibility that Ms. Woychyshyn may have left the scene of an accident, and was attempting to determine what Ms. Woychyshyn had struck. He did not know whether she struck another person, another car, a rock, a ditch, or an animal. He frankly admitted that he simply did not know what he was dealing with. At the same time, Sgt. Harker had lingering concerns about Ms. Woychyshyn's mental health.

[17] In furtherance of the completion of the Motor Vehicle Accident Report, Sgt. Harker required certain information: the date, time, location, and nature of the accident. As he asked questions and prepared the Motor Vehicle Accident Report, Ms. Woychyshyn told Sgt. Harker that her co-worker had recently passed away and that she was having a hard time dealing with his loss. Ms. Woychyshyn's answers with respect to the date, time, location, and nature of the accident were vague. Sgt. Harker recounted some of the questions asked and answers given during the preparation of the report. He recounted them as follows:

Q: What did you hit?

A: I have no idea.

Q: Wearing a seatbelt?

A: Yep.

Q: Alcohol?

A: No.

Q: Drugs?

A: No.

Q: Witnesses?

A: No.

Q: Time?

A: I have no idea.

Q. Why not call the police?

A: No idea. Scared.

Q. How far from here?

A: 12 km north.

Q. Animal?

A: Fox.

[18] As can be seen, Ms. Woychyshyn's answers were vague, at times inconsistent, and contained a professed lack of awareness of some of the salient details being sought by Sgt. Harker. As a result, after the completion of the Motor Vehicle Accident Report, Sgt. Harker was still uncertain about the nature, place and circumstances of the accident. That said, after 5-10 minutes in the cruiser with Ms. Woychyshyn, Sgt. Harker had been unable to detect an odour of alcohol coming from her. Having obtained what little information Ms. Woychyshyn was able or willing to provide regarding the accident, Sgt. Harker then exited his cruiser and examined Ms. Woychyshyn's vehicle.

[19] Further examination of Ms. Woychyshyn's vehicle did not shed any light on the nature of the collision. Sgt. Harker then called for the assistance of a female officer. At this point, he did not know where the investigation was going, but he wanted the assistance of a female officer in the event a search of Ms. Woychyshyn became necessary.

[20] Constable Gowlett responded to the call. When she arrived, Sgt. Harker asked her to speak to Ms. Woychyshyn in the back of the cruiser and attempt to determine the presence or absence of an odour of alcohol on Ms. Woychyshyn's breath.

[21] While Constable Gowlett spoke to Ms. Woychyshyn, Sgt. Harker called his Acting Inspector for advice.

[22] After speaking to his Acting Inspector, Sgt. Harker decided to place Ms. Woychyshyn under arrest under section 200(1) of the Highway Traffic Act ("HTA"). The arrest took place at 5:25 p.m., 1 hour and 11 minutes after the original traffic stop.

[23] In his evidence in chief, Sgt. Harker testified that he decided to place Ms. Woychyshyn under arrest because he wanted to continue his investigation under the HTA. He elaborated that the purpose for his decision to arrest was to get the information that he had thus far been unable to obtain for the preparation of the Motor Vehicle Collision Report, pursuant to section 199(3) of the HTA. He was still concerned about the location of the accident and the possibility of injuries to other people.

[24] In cross-examination, Sgt. Harker agreed that he placed Ms. Woychyshyn under arrest in order to continue the investigation: "Yes, I was continuing the investigation." He was then asked by defence counsel to identify the specific purpose of the arrest, to which he replied:

I wasn't – at that point I was still investigating and I wasn't going to – I was going to continue to detain her and I was going to read her her rights to counsel.

[25] Defence counsel then asked Sgt. Harker, "The purpose of the arrest was so that you could read her her rights to counsel?" Sgt. Harker replied, "That's part of them, yes. Just that I was going to be detaining her longer and I was going to read her her rights to counsel."

[26] Sgt. Harker then conceded that he could have informed Ms. Woychyshyn of her rights to counsel without arresting Ms. Woychyshyn. He also conceded that he could have informed Ms. Woychyshyn of her rights to counsel "a lot earlier."

[27] Sergeant Harker also confirmed that during the 1 hour and 11 minutes of detention preceding the arrest and at the time of the arrest, he was concerned with three parallel issues: the possibility of impaired driving, the completion of the Motor Vehicle Accident Report, and the mental health of Ms. Woychyshyn.

[28] Upon placing Ms. Woychyshyn under arrest at 5:25 p.m., Sgt. Harker informed Ms. Woychyshyn of her rights to counsel. She indicated that she understood her rights to counsel and declined to speak to counsel. He then read to her a voluntariness caution, which she understood.

[29] During the course of this arrest, Sgt. Harker noticed dried vomit on Ms. Woychyshyn's shirt and pants. He had not noticed this dried vomit before.

[30] Sergeant Harker then directed Constable Gowlett to search Ms. Woychyshyn. Sgt. Harker testified that he directed the search for the safety of the officers and of Ms. Woychyshyn. He testified that sometimes people's demeanour changes after being placed under arrest. He found the search necessary despite the fact that he had left Ms. Woychyshyn alone and unsupervised in the rear of his cruiser for a substantial portion of her pre-arrest detention. He did not feel the need to search Ms. Woychyshyn prior to the initial placement in his cruiser, because he did not feel he had grounds to search her and because he was still investigating the accident.

[31] Constable Gowlett informed Sgt. Harker that Ms. Woychyshyn had burped into her face while Constable Gowlett was performing the search incident to arrest. Constable Gowlett further informed Sgt. Harker that she could detect an odour of an alcoholic beverage coming from Ms. Woychyshyn's burp.

[32] In response to this new information, Sgt. Harker went to his cruiser, opened the back door, and spoke with Ms. Woychyshyn. Sgt. Harker testified that at this point in time he could detect the odour of alcohol in the back of the cruiser and on the breath of Ms. Woychyshyn.

[33] With this final additional piece of evidence, Sgt. Harker formed the belief that Ms. Woychyshyn's ability to operate a motor vehicle was impaired by the consumption of alcohol. His grounds for arrest can be summarized as follows:

(1) The apparently recent motor vehicle accident;

(2) The failure of Ms. Woychyshyn to pull over immediately when signalled to do so;

(3) Ms. Woychyshyn's slight fumbling when retrieving her driver's licence;

(4) Ms. Woychyshyn's confused state;

(5) Ms. Woychyshyn's limited recollection of the collision;

(6) The presence of bottles of alcohol in Ms. Woychyshyn's vehicle;

(7) The odour of alcohol coming from the burp/breath of Ms. Woychyshyn.

[34] Acting on these grounds, Sgt. Harker arrested Ms. Woychyshyn for impaired operation of a motor vehicle. He re-advised her of her rights to counsel. She again declined.

[35] Sergeant Harker then transported Ms. Woychyshyn to the South Georgian Bay Detachment. They arrived at 5:52 p.m. While at the detachment, Sgt. Harker took an inventory of the contents of Ms. Woychyshyn's purse. In doing so, he noted the presence of two cell phones in her purse.

[36] Ultimately, Sgt. Harker provided his grounds for the arrest and the breath demand to Cst. Brady, the breath technician. After the completion of the Ms. Woychyshyn's breath tests, Cst. Brady advised Sgt. Harker of the results of the breath tests and provided to Sgt. Harker a Certificate of Qualified Breath Technician, as well as a Notice of Increased Penalty. These documents were marked as Exhibits 4 and 5 at trial, respectively.

[37] Video tape from the detachment suggested that the Ms. Woychyshyn's first breath test was taken at 6:15 p.m. Given the evidence which suggested Sgt. Harker's watch was in sync with the clock display on the video, the evidence suggested that the first breath sample was not taken within 2 hours of the initial traffic stop. Her blood alcohol level at the time of this first test was 236 mg of alcohol in 100 ml of blood. Her second breath test gave rise to a reading of 237 mg in 100 ml of blood.

[38] Given the concern about the application of the statutory presumption, the Crown called the evidence of a toxicologist to provide an opinion about Ms. Woychyshyn's blood alcohol content at the time of her initial detention. That evidence will be briefly summarized in due course.

[39] Interestingly, despite being told that the original arrest pursuant to sections 200 and 217 of the HTA, was for the purpose of furthering the section 199 inquiry, I heard of no further attempts to complete any Motor Vehicle Accident Report following that arrest or the arrest for impaired driving.

2. The Evidence of Constable Gowlett

[40] Constable Gowlett was a 12 year veteran of the OPP.

[41] At 5:05 p.m., on January 25, 2015, she received a request to assist Sgt. Harker with a motor vehicle collision. It took about 10-15 minutes to travel to the scene.

[42] Upon arrival, Constable Gowlett spoke to Sgt. Harker about the condition of Ms. Woychyshyn's vehicle and the uncertainty about the location of the accident.

[43] Constable Gowlett opened the rear door of Sgt. Harker's cruiser to speak to Ms. Woychyshyn, to confirm that Ms. Woychyshyn was okay. Ms. Woychyshyn appeared shaken and visibly upset. Constable Gowlett testified that she was attempting to make Ms. Woychyshyn feel more comfortable. She spoke to Ms. Woychyshyn for about 5-10 minutes and did not notice the odour of an alcoholic beverage on Ms. Woychyshyn's breath.

[44] Sergeant Harker then arrested Ms. Woychyshyn under the HTA and directed that Cst. Gowlett perform the search incident to arrest. Constable Gowlett testified in chief that she searched Ms. Woychyshyn for safety reasons. However, in cross-examination, Constable Gowlett admitted that she did not have any concerns for Ms. Woychyshyn's safety, nor did she have any officer safety concerns. During the search, Constable Gowlett came face to face with Ms. Woychyshyn, at which point Ms. Woychyshyn burped in Constable Gowlett's face. Constable Gowlett smelled the odour of alcohol in the burped air coming from Ms. Woychyshyn. Constable Gowlett advised Sgt. Harker of this observation. She then finished her search of Ms. Woychyshyn and placed Ms. Woychyshyn back in Sgt. Harker's cruiser. Constable Gowlett then did an inventory search of Ms. Woychyshyn's vehicle.

[45] During the search of Ms. Woychyshyn's vehicle, she found a bottle of Absolute Vodka, with a small amount missing/consumed from the bottle. She also found an empty bottle of vodka in Ms. Woychyshyn's vehicle at a later point in time.

3. The Evidence of Ms. Woychyshyn on the Charter Voir Dire

[46] Ms. Woychyshyn was a Detective Constable employed at the Huronia West OPP detachment. She had been a uniformed officer since 2007, but had been on stress leave since April of 2014. She suffered from PTSD and depression. She took medication for these conditions. At the time of the alleged offence, she was engaged in residential treatment for alcoholism and PTSD. She had been released for the weekend so that she could attend at the visitation and the funeral for her former partner and colleague.

[47] On January 25, 2015, at around 4:14 p.m., she pulled into her driveway in a state of panic and anxiety. She then moved into the passenger side seat and opened a bottle of Absolute Vodka and took a drink from it.

[48] Ms. Woychyshyn provided a narrative consistent with the narratives provided by Sgt. Harker and Constable Gowlett. With her evidence, it became clear that her co-worker had died very recently and that the funeral for that co-worker was the next day, January 26th, 2015.

[49] Ms. Woychyshyn acknowledged that after each of her two arrests, she declined the opportunity to contact counsel. However, Ms. Woychyshyn testified that had she been advised of her right to counsel prior to being arrested, she would have called her lawyer, Karen Jokinen. She knew Ms. Jokinen from past dealings with her and almost considered her a friend. She had Ms. Jokinen's contact information on her cell phone.

[50] Ms. Woychyshyn explained that, from her perspective, once she was arrested she did not believe that there was anything her lawyer could do for her. She believed that the time during which a lawyer could be helpful was the time prior to arrest. Once she had been arrested, she knew that she was going to cooperate and go through the procedure. "Once I'm arrested, there is really nothing that a lawyer can do for me. So I knew I would just cooperate and go through the procedure." She had this mindset regarding both the HTA arrest and the Criminal Code arrest.

[51] Ms. Woychyshyn also testified that she was unaware of her legal obligation under section 199 of the HTA to provide information regarding the accident as may be required by a peace officer.

4. The Evidence of Dr. Langille

[52] Dr. Langille opined that at the time of the traffic stop, Ms. Woychyshyn's blood alcohol would have been in the range of 230-270 mg of alcohol in 100 ml of blood. However, he also gave evidence that if Ms. Woychyshyn had consumed between 7 and 8 ounces of vodka shortly prior to the traffic stop [perhaps in the neighbourhood of 5 minutes prior] she could have had a blood alcohol level below 80mg/100ml of blood at the time of driving but still produced the readings seen at the station.

[53] Given the time that transpired between the traffic stop and the first breath sample, and given the evidence of Dr. Langille, the evidence suggests that application of the statutory presumption of identity and the issue of bolus drinking remain live issues.

C. ISSUES RAISED

(1) Was the applicant unconstitutionally denied her right to counsel at any point during the course of her detention?

(2) Was the applicant arbitrarily detained when,

(a) initially stopped and questioned while she occupied her own motor vehicle?

(b) transferred to Sgt. Harker's cruiser?

(c) held in Sgt. Harker's cruiser for 1 hour and 11 minutes prior to any arrest?

(d) arrested for the offence of Failing to Remain at the Scene of an Accident, pursuant to s. 200 of the HTA?

(e) arrested for the offence of impaired driving?

(3) Was the applicant the subject of an unreasonable search and seizure, when searched incident to the s. 200 HTA arrest?

(4) Was the applicant the subject of an unreasonable search and seizure when her breath samples were taken pursuant to the s. 254(3) breath demand?

1. THE RIGHT TO COUNSEL

[54] The right to counsel is triggered upon arrest or detention.

[55] As was stated by the Supreme Court of Canada in R. v. Suberu 2009 SCC 33, [2009] 2 SCR 460 at paragraph 39 to 40 (wording in bold for emphasis):

39 The content of the police duties under s. 10(b) is not at issue in this appeal. Instead, the question is whether the right to retain and instruct counsel "without delay" means that these duties must be executed immediately at the outset of a detention, or whether these duties manifest at some later point subsequent to the start of a detention.

40 As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". 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.

42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[56] When the police stop a motorist, pursuant to section 216 of the Highway Traffic Act, they detain the motorists, within the meaning of section 9 of the Charter. When the police fail to allow a motorist to retain and instruct counsel at the outset of these brief traffic stops, they infringe the motorist's right to counsel, as protected by section 10(b) of the Charter. Brief traffic stops that have as their aim the preservation of road safety or compliance with road safety laws, and that occur in circumstances where the motorist is not afforded the right to retain and instruct counsel, violate section 10(b) of the Charter of Rights and Freedoms. However, these brief stops are saved by section 1 of the Charter as being a reasonable limit on the right to counsel in a free and democratic society. Similarly, the screening measures authorized by section 254(2) of the Criminal Code necessarily and implicitly override the right to counsel [because of the statutory requirement to make the demand forthwith and require compliance with that demand forthwith], but they too are saved by section 1 as a reasonable limit upon the right to counsel. These breaches of the right to counsel are saved by section 1 in part because they involve an attempt to achieve a significant societal goal [road safety and the reduction of needless deaths and injuries in the course of a regulated activity]; in part because they are necessarily brief detentions; in part because the insistence upon compliance with section 10(b) would prolong the detention without any legitimate offsetting benefit to the motorist who is engaged in this regulated activity.

R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3 at para. 2

R. v. Thomsen, [1988] 1 S.C.R. 640

R. v. Cote (1992), 70 C.C.C. (3d) 280 (Ont. C.A.)

[57] When traffic stops cease to be relatively brief interruptions of a person's right to move freely about this country, they may no longer be considered a reasonable limit on the constitutionally protected right to retain and instruct counsel upon arrest or detention. One of the key saving features, the brevity of the stop, will tend to dissipate and eventually disappear as the duration of the stop grows.

[58] Consider for example, the situation where a roadside screening device is not available and cannot arrive in a relatively prompt time. In such circumstances, the statutory requirement to not only make a screening demand forthwith, but to also seek compliance with that demand forthwith, is violated. In measuring whether or not the screening procedure was carried out forthwith, our courts have used as a "measuring stick" the question, "was there a reasonable opportunity to meaningfully consult counsel during the time between the forming of the suspicion and the expected arrival time of the device?" In circumstances where the consultation with counsel cannot be said to prolong the detention, one of the key saving features of the statutorily authorized breaches of the right to counsel ceases to exist. In these circumstances, the roadside screening procedure is deemed not to have been completed forthwith.

R. v. George, [2004] O.J. No. 3287 (C.A.)

[59] In other cases, where the screening device arrived 6 or 7 minutes after the demand, courts have concluded that any attempts to consult with counsel during such a brief interval would have been futile. Using this notional measuring stick, courts have concluded that the screening sample was in fact taken forthwith.

See for example, R. v. Torsney, 2007 ONCA 67, [2007] O.J. 355 (C.A.)

[60] Section 199 of the Highway Traffic Act states:

199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

Officer may direct person to report accident at another location

(1.1) If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

Where person unable to report

(2) Where the person is physically incapable of making a report and there is another occupant of the motor vehicle, the occupant shall make the report.

[61] Like the language of section 254(2) of the Criminal Code, section 199 of the HTA contains a forthwith requirement. Section 199 requires that the motorist report the accident forthwith and furnish the officer with information concerning the accident as may be required by the officer.

[62] In my view, the operation of section 199 of the HTA may in some but not all circumstances necessarily and implicitly, albeit temporarily, override the right to counsel to a certain degree. If an officer arrives on scene at an accident and immediately requires a report, a motorist, in order to comply with the forthwith requirement would not be in a position to contact counsel. On this example, it is my view that the case law interpreting the forthwith requirement in section 254(2) of the Criminal Code is instructive. That said, I can conceive of situations where, once the call for police assistance takes place, one may need to wait at the scene of the accident for the arrival of a police officer, and during this interval one may have plenty of opportunity to consult with and receive advice from counsel. Similarly, a person might depart his/her disabled car that was stuck in a ditch and walk to the nearest police station in order to make a report [and thereby arguably comply with the forthwith requirement], and might choose simultaneously to consult with counsel during this journey. In these examples, compliance with the forthwith requirement does not necessarily or implicitly involve an interference with the reasonable opportunity to consult with counsel.

[63] On the evidence before me, there is no evidence suggesting that the applicant reported the accident to another police officer prior to speaking to Sgt. Harker. Indeed, I infer that she did not make a report to another officer. Given the severe damage to the vehicle, I infer that any conscientious officer would not have allowed Ms. Woychyshyn to continue to drive her car. As a result, I infer that Ms. Woychyshyn's compliance with the reporting requirement in section 199 began when she commenced answering Sgt. Harker's questions. She continued to answer his questions about the accident in his cruiser too. Her answers were no doubt unsatisfactory. She was either unable or unwilling to provide further detail. I find as a fact that Sgt. Harker was unsure of the reason for Ms. Woychyshyn's unsatisfactory answers, but ultimately concluded her lack of clarity and coherence formed part of the grounds for his arrest for Impaired Driving. Inclusion of this factor in the grounds for arrest tend to suggest that Sgt. Harker was prepared to accept that Ms. Woychyshyn's mental status, probably impaired by alcohol, factored into her lack of responsiveness during the attempt to complete a Motor Vehicle Accident Report. Whatever the cause of the non-responsiveness, Sgt. Harker seems to have quickly come to the conclusion that further discussion after the first 10 minutes (approximately) was getting him nowhere. He then got out, leaving Ms. Woychyshyn alone and locked in the cruiser. About an hour transpired between his departure from the cruiser and Ms. Woychyshyn's arrest. While I am not certain as to all of what transpired during that hour, I know that Sgt. Harker examined Ms. Woychyshyn's car, spoke to Cst. Gowlett briefly, and received advice from his Acting Inspector. I do note, however, that there appears to be a considerable amount of time that is not explained by the actions of Sgt. Harker or Cst. Gowlett.

[64] I strongly suspect that Sgt. Harker had smelled alcohol all along. I also strongly suspect that, being somewhat familiar with Ms. Woychyshyn, Sgt. Harker knew [either form a CPIC inquiry or from his passing knowledge of Ms. Woychyshyn] that Ms. Woychyshyn had previously been convicted of a drinking and driving offence. I also strongly suspect that he was hoping not to arrest a fellow officer a day before her colleague's funeral. Finally, I strongly suspect that he finally capitulated and belatedly did the right thing, perhaps out of fear that there might be another motorist out there that was involved in a collision with Ms. Woychyshyn, but had not yet been able to report the accident. These suspicions explain why an experienced OPP officer would not ask a detainee to blow in his face to facilitate his suspicions about alcohol consumption. These suspicions explain why a woman who had readings nearly 3 times the legal limit would not stink of the odour of alcohol and leave the cruiser reeking of her consumption, particularly in light of evidence suggesting that she had vomited in the relatively recent past. These suspicions explain why a cruiser, that did not smell of alcohol for about an hour of the accused's occupancy of it, was suddenly infused with the odour after a single burp. Nevertheless, no party advanced this theory; and my suspicions are not sufficiently supported by evidence, such that they can be considered reasonable inferences, rather than speculation.

[65] In any event, during this period of approximately 1 hour, Sgt. Harker was no longer seeking an accident report. He had, for better or worse, received the report from the civilian. I do not read section 199 as permitting an officer to hold a motorist until that motorist provide answers an officer likes. In coming to this conclusion, I am mindful that section 217 does not provide the power to arrest a person for failing to make an accident report. Absent an objectively reasonable subjective conclusion that the motorist is resisting or willfully obstructing the officer in the preparation of the Motor Vehicle Accident Report [a conclusion never reached by Sgt. Harker], a breach of section 199, can only lead to a traffic ticket, not an arrest. I infer, therefore, that section 199 detentions must ordinarily be brief, and only as long as reasonably necessary to allow the officer to make inquiries and get answers [however unsatisfactory those answers may be] to those inquiries. Any continued detention beyond this brief time period ought, in my view, to trigger the right to counsel. In the case at bar, the officer clearly abandoned his inquiries of Ms. Woychyshyn for close to an hour, but nevertheless kept her detained. In these somewhat unique circumstances, I am of the view that Sgt. Harker violated Ms. Woychyshyn's right to retain and instruct counsel after he ceased asking questions of her about the accident, but nevertheless kept her detained. It may well be that his examination of Ms. Woychyshyn's motor vehicle was directly responsive to his inquiries of Ms. Woychyshyn, and it may well be that this brief vehicle examination might be considered to be part of the reporting exercise, but the examination of Ms. Woychyshyn's vehicle was brief. Even if one includes Sgt. Harker's examination of Ms. Woychyshyn's vehicle as part of Ms. Woychyshyn's accident report, I find that somewhere between 45 minutes and an hour expired between the conclusion of that examination and Ms. Woychyshyn's arrest. Sgt. Harker ought to have advised Ms. Woychyshyn of her rights, at the very least, upon the conclusion of the examination of her motor vehicle. Sgt. Harker himself conceded that he could have advised her of her rights a lot sooner. In my view, he was correct to make this concession. He breached Ms. Woychyshyn's right to counsel by failing to inform her of her right to counsel and instead leaving her waiting for close to an hour in his cruiser for the officer to figure out his next step.

[66] While it is not necessary to arrive at my conclusion regarding this breach of the right to counsel, and while such evidence is innately speculative and of little assistance to the court, I will nevertheless turn my mind to Ms. Woychyshyn's evidence concerning what she would have done had she been afforded the right to counsel prior to her arrest. I remind myself that she twice declined the opportunity to contact counsel, after the HTA arrest and after the impaired arrest. Ms. Woychyshyn explained that she felt her need for counsel was higher prior to arrest, than after arrest. I infer from her explanation that she feels counsel may be useful in avoiding the arrest in the first place, and, following the arrest, a lawyer has little utility. While some might call this an unenlightened view of the utility of counsel [I'm sure many defence counsel might], I accept that she honestly held this belief. I also accept that she possessed a cell phone and the contact information for her lawyer on her cell phone. Accordingly, she was in a position to meaningfully obtain legal advice, had the officer complied with his informational obligations under section 10(b). Because of the failure to comply with the informational obligation, and because of the availability to utilize her cell phone to implement any right, I do not need to address the thorny issue of whether the officer ought to have allowed her into her residence [not yet having grounds to arrest, investigatively detain, or detain under the Mental Health Act] to use a phone to contact counsel.

2. WAS THE APPLICANT ARBITRARILY DETAINED?

a) Overview of the Law

[67] Section 9 of the Charter guarantees everyone the right to be free from arbitrary detention or imprisonment.

[68] An unlawful detention or imprisonment is necessarily an arbitrary detention.

[69] The legal authority to initiate a detention may arise from a constitutionally valid statute or from the common law.

[70] The assessment of the constitutional validity of a detention does not end with the identification of the existence of a lawful power to initiate the detention. The protection afforded by section 9 of the Charter is concerned not only with confirming the existence of a power to initiate a detention, but also with confirming whether the exercise of that power was justified. Whether the power to detain arises from a statute or the common law, a detention will only be found to be constitutionally valid [i.e. not arbitrary] if it was reasonably necessary in all the circumstances. Accordingly, this constitutional protection is concerned with the assessment of the existence of a legal power, the decision to invoke that power, the manner in which that power was invoked, and the duration for which that power was invoked. The determination of reasonable necessity

… will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.

See R. v. Aucoin, 2012 SCC 66 at paras. 30-44

See also R. v. Clayton, 2007 SCC 32 at para. 31

R. v. Mann, 2004 SCC 52

In short, the assessment of reasonable necessity is context specific and connotes the employment of the least intrusive interference with the liberty of the detainee necessary to accomplish the performance of the police duty in question.

[71] At common law, the police have the power, in furtherance of their statutory duties, to detain individuals for the purpose of carrying out those duties; however, the power is not without limits. The power to detain arises from an objective assessment of the totality of the circumstances.

[72] At common law, the power to initiate an investigative detention arises from the existence of reasonable grounds to suspect the detainee is implicated in criminal activity.

[73] The Highway Traffic Act also permits the detention of individuals. Section 216 of the HTA permits both random and event specific detentions of motorists. Section 216 reads:

216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

Stops made for the purposes of enforcing driving related laws and promoting the safe use of motor vehicles are authorized by s. 216(1) of the Highway Traffic Act. Once road safety concerns are removed as the basis for the stop, the power provided by section 216 of the HTA cannot be relied upon.

See R. v. Simpson, [1993] O.J. No. 308

[74] Subsection 217(2) of the HTA also provides the statutory power to arrest individuals for certain HTA offences. That subsection reads as follows:

(2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9(1), subsection 12(1), subsection 13(1), subsection 33(3), subsection 47(5), (6), (7) or (8), section 51, 53, subsection 106(8.2), section 130, 172 or 184, subsection 185(3), clause 200(1)(a) or subsection 216(1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention.

[75] Stops performed in furtherance of road safety concerns [for example, the assessment of the sobriety of the driver, the mechanical fitness of the vehicle, the existence of a valid licence, and the existence of proper insurance] should be performed at the site of the detention, with dispatch, with no danger to the detainee, and with minimal inconvenience to the detainee. In other words, they must be performed only in a manner that is reasonably necessary to carry out this particular police duty. [see R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3].

b) An Overview of the Dynamic Nature of the Detention and the Need for a Continuing Reassessment of the Validity of the Detention from Its Beginning to Its Conclusion

[76] Ms. Woychyshyn's situation is somewhat complicated because the justification for and the nature of her detention changed over time. At first, she was simply stopped pursuant to section 216 of the Highway Traffic Act for the purpose of investigating a collision and completing an accident report pursuant to s. 199 of the HTA. Simultaneously, the officer was concerned with assessing whether or not a criminal driving offence had been committed. Later, the officer arrested Ms. Woychyshyn, pursuant to section 217 of the HTA for an alleged violation of section 200 of the HTA [i.e. fail to remain at the scene of the accident]. Next, the officer arrested Ms. Woychyshyn, pursuant to section 495 of the Criminal Code for a violation of section 253 of the Criminal Code [impaired driving] and continued her detention for the purpose of obtaining a breath sample, in accordance with section 254(3) of the Code.

[77] Even if the original detention was lawful, the court must still address whether, at any point, the exercise of the powers conferred by sections 216 and 199 became exhausted [no longer reasonably necessary to achieve the statutory duty].

[78] The court must also assess whether the arrest, under sections 217 and 200 of the HTA, for failing to report an accident was valid.

[79] Then, the court must assess whether the arrest, under sections 495 and 253 of the Criminal Code was valid.

[80] At each stage, I must consider whether any of the grounds for the detention in question were obtained in violation of Ms. Woychyshyn's Charter rights. If the basis for the subsequent detentions depended upon unconstitutionally obtained grounds, then those subsequent detentions may themselves become arbitrary.

c) The Initial Traffic Stop

[81] The defence does not contest the validity of the original traffic stop of Ms. Woychyshyn. That stop was authorized by section 216 of the HTA, a constitutionally valid law that is not subject to challenge in this case. In my view the decision to stop was reasonably necessary and justifiable. It was not arbitrary.

[82] Similarly, the initial brief questioning of Ms. Woychyshyn, which took place over a few short minutes while she sat in her car, was entirely appropriate and reasonably necessary to address the road safety concerns possessed by Sgt. Harker.

d) The Initial Transfer to Sgt. Harker's Cruiser

[83] I am prepared to accept Sgt. Harker's evidence that he transferred Ms. Woychyshyn to his cruiser for the purpose of (1) completing the Motor Vehicle Accident Report in more comfortable conditions; and (2) attempting to make a better assessment of Ms. Woychyshyn's sobriety while in the cruiser. These aims are all aims validly supported by section 216 of the HTA. Given the freezing cold temperatures and the valid regulatory aims of Sgt. Harker, I am prepared to accept that the initial transfer of Ms. Woychyshyn was reasonably necessary in all the circumstances.

[84] I also accept that Sgt. Harker also had valid concerns about Ms. Woychyshyn's mental health and well-being. In my view, he was entitled to briefly explore this area of concern as he addressed the aforementioned road safety issues.

e) The Ongoing Detention of Ms. Woychyshyn in the Cruiser after Approximately 10 Minutes

[85] The overall duration of the detention in the cruiser has a fundamental impact upon the nature of the detention. As noted, it took only about 5-10 minutes to ask questions in furtherance of the completion of the Motor Vehicle Accident Report and the assessment of Ms. Woychyshyn's sobriety. For the next hour [approximately], the officer appears to have abandoned any effort at eliciting any more information from Ms. Woychyshyn for the purpose of preparing a Motor Vehicle Accident Report and exploring the sobriety of the driver. Indeed, as noted above, I heard no evidence to suggest that Sgt. Harker made any attempts following either the HTA arrest or the Impaired Driving arrest to elicit further information relevant to the completion of a Motor Vehicle Accident Report. I therefore come to the conclusion that while clearly not satisfied with the incomplete information provided by Ms. Woychyshyn, he had essentially given up trying to elicit more information in furtherance of the completion of his report.

[86] Nevertheless, Ms. Woychyshyn remained in a locked cruiser. In my view, the approximately one hour period of detention following Sgt. Harker's exit from the cruiser and Ms. Woychyshyn's arrest was not reasonably necessary for the completion of the Motor Vehicle Accident Report, nor was it reasonably necessary to assess Ms. Woychyshyn's sobriety. During this one hour time period, the officer had no grounds to make a Criminal Code arrest. He also did not have sufficient grounds to issue an ASD demand, nor a Breath Demand during this time period. Similarly, he did not profess to have the subjective grounds necessary to lay a charge under the HTA. On the contrary, to borrow his expression, he simply did not know what he was dealing with, and he was unsure about what he ought to do next.

[87] I note at this juncture that, when explaining the reason for his decision to arrest Ms. Woychyshyn for contravening section 200 of the HTA, he wanted to continue his investigation under section 199 of the HTA. However, Sgt. Harker did not satisfactorily explain how the arrest might further this investigation under section 199 of the HTA. It is tempting to infer that Sgt. Harker believed that the coercive effect of an arrest might get Ms. Woychyshyn talking, but Sgt. Harker did not provide this draconian motive as an explanation for the arrest. In my assessment, he presented as being more befuddled than calculating. I note that in cross-examination, the officer professed that his motive in pursuing the arrest was to trigger the provision of the right to counsel. He also used vague language like "I was continuing the investigation", without explaining how an arrest would assist with this continuation. I highlight his evidence on his decision to arrest at this juncture, because in my view it discloses that Sgt. Harker was for close to an hour unsure of his authority and unsure of what to do next. Meanwhile, during this hour long period of uncertainty, Ms. Woychyshyn remained locked in a cruiser.

[88] While I am mindful that the answers given by Ms. Woychyshyn were wholly unsatisfactory to Sgt. Harker, I am also mindful that a breach of section 199 [which mandates a civilian report the accident] does not provide the basis for an arrest pursuant to section 217 of the HTA. I am also mindful that an arrest for the offence of Obstruct Police requires the formation of an objectively reasonable subjective belief that the motorist is intentionally resisting or willfully obstructing an officer in the performance of his duty. The officer never professed to possess a subjective belief that Ms. Woychyshyn was obstructing him. He was simply faced with responses that, for reasons that remained unclear, did not fully explain the details of the accident.

[89] As noted, I have inferred that, after 10 minutes of trying, Sgt. Harker did not believe he was going to get any more information from Ms. Woychyshyn. In those circumstances, he soon thereafter lost the justification to continue her detention for the purpose of providing more satisfactory answers. At the very least, once he had briefly examined Ms. Woychyshyn's car, I am satisfied that he had ceased preparation of his report and that Ms. Woychyshyn's detention was no longer reasonably necessary for that purpose.

[90] In my view, the prolonged detention was the by-product of Sgt. Harker's uncertainty. As he put it, he did not know what he was dealing with.

[91] Part of Sgt. Harker's uncertainty stemmed from his concerns for Ms. Woychyshyn's mental health. Ms. Woychyshyn was clearly upset. She reported suffering from PTSD. She had lost her police partner, whose funeral was the next day. Sgt. Harker knew another police officer who had taken his own life when suffering from PTSD and depression. Sgt. Harker's concerns were genuine and real. He struck me as a man of admirable compassion, one who should be commended for his empathy and concern for Ms. Woychyshyn. However, Ms. Woychyshyn gave the officer no basis to have reasonable grounds to believe that her detention was necessary to protect her or others. He did not purport otherwise. It is therefore clear from Sgt. Harker's evidence that he had no subjective grounds to detain Ms. Woychyshyn under the Mental Health Act. Rather, he had concerns. I note that Sgt. Harker did not even search Ms. Woychyshyn before placing her in his cruiser and leaving her unattended for about roughly 50-60 minutes. If he had serious concerns about her engaging in self-harm, surely he would have searched her before placing her in the cruiser and/or at least before leaving her alone in the cruiser.

[92] Sgt. Harker knew where Ms. Woychyshyn lived – they were in her driveway. He could easily check up on her over the course of his shift; he could also speak to her supervisors to ensure that appropriate support personnel were checking up on her; and he could refer her to appropriate mental health agencies. Keeping Ms. Woychyshyn locked up in the back of his cruiser was not reasonably necessary to address Sgt. Harker's concerns. Ultimately, I conclude that it was not reasonably necessary to detain Ms. Woychyshyn in his locked cruiser for approximately an hour to address any ongoing mental health concerns Sgt. Harker harboured.

[93] If one were to consider Ms. Woychyshyn's detention as an ongoing investigative detention [continued for the purpose of investigating the possibility of the commission of a criminal offence], then the concept reasonable necessity in furtherance of an investigative detention can be described as reasonable grounds to believe that the detainee was implicated in a criminal offence. Did Sgt. Harker have such grounds? I think not. Sgt. Harker made a point of indicating that, prior to smelling alcohol [1 hour and 11 minutes into the detention], he quickly concluded he did not have grounds to believe the accused was impaired by alcohol. He had no idea about the nature of the accident in which the accused was involved. He did not profess to subjectively believe that the accused was implicated in any criminal activity. For instance, he did not profess to possess subjective grounds to believe Ms. Woychyshyn was implicated in a criminal driving offence; nor did he profess to subjectively believe Ms. Woychyshyn was intentionally obstructing him in the course of his duties. According to Sgt. Harker, he did not know what he was dealing with, and the examination of Ms. Woychyshyn's vehicle did not offer any insights. In summary, Sgt. Harker did not purport to have the subjective grounds necessary to substantiate a criminal investigative detention. I therefore conclude that detention for that purpose cannot be described as reasonably necessary in all the circumstances.

f) The Arrest for Failure to Remain at the Scene of an Accident

[94] Before examining Sgt. Harker's power to arrest pursuant to s. 200 of the HTA, it will be helpful to reproduce sections 199 to 201 of the HTA. Those sections read as follows:

Duty to report accident

199 (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). R.S.O. 1990, c. H.8, s. 199 (1) ; 2002, c. 17 , Sched. F, Table.

Duty of person in charge of vehicle in case of accident

200 (1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;

(b) render all possible assistance; and

(c) upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver's licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number. R.S.O. 1990, c. H.8, s. 200 (1) ; 1997, c. 12, s. 16.

Notification of damage to trees, fences, etc.

201 Every person who, as a result of an accident or otherwise, operates or drives a vehicle or leads, rides or drives an animal upon a highway and thereby damages any shrub, tree, pole, light, sign, sod or other property on the highway or a fence bordering the highway shall forthwith report the damage to a police officer. R.S.O. 1990, c. H.8, s. 201 . [Emphasis added]

[95] Section 199 mandates that an individual involved in an accident involving personal injuries or property damage [1] report the accident to the nearest police office. This section explicitly envisages the individual departing the scene to make the report to the nearest police officer, one who may be nowhere near the scene of the accident. The section mandates this reporting and potential departure from the scene, despite the potential that the property damage or injury may involve another person (motorist, passenger, pedestrian).

[96] Like section 199, section 201 mandates reporting an accident involving damage to certain highway property, and implicitly mandates a departure from the scene for the purpose of making that report [there was a time during the lifetime of this provision that cell phones were not ubiquitous].

[97] Subsections 200(1)(a), (b), and (c) are conjunctive, not disjunctive. It requires the motorist to remain at the scene (or return to it, perhaps after reporting the accident in accordance with section 199), provide all possible assistance, and provide certain limited information [2] to any other person sustaining loss (or to a police officer or witness at the scene, as the case may be). Read literally and purposively, the sections mandate the motorist to remain at the scene for the purpose of providing information to other people who are also at the scene and have some connection to the accident (whether a participant in the accident, a witness to it, or a police officer investigating it). The purposes of the requirement to remain are to provide assistance and information. These purposes therefore require the involvement of other human beings. Surely, once the assistance has been rendered and the information has been shared, the requirement to remain at the scene expires.

[98] Despite the Crown's able submissions, I cannot read section 200 as requiring a motorist to remain at the isolated rural scene of a single motor vehicle accident where the motorist drove into a ditch and damaged her car. In that scenario, no one requires assistance, no one witnessed the accident, and there exists no one with whom the motorist can share information. Meanwhile, the motorist must report the accident to the nearest police officer, if there was any damage to a shrub, or tree, or sod. Neither the shrub, nor tree, nor sod could reasonably be said to either be sentient [and thus capable of receiving driver information] or to require assistance. Compliance with the reporting requirement may in many lawful circumstances require a departure from the scene without any return visit.

[99] Therefore, in my respectful view, an officer who purports to make an arrest under section 200 of the HTA must have reasonable grounds to believe that the motorist who failed to remain at [or return to] the scene was involved in an accident involving another human being who sustained loss or injury [a motorist or pedestrian] or at least involving another witness [whether civilian or police] who is present immediately after the accident. I do not interpret the section as requiring a motorist to remain to wait for others to show up.

[100] It is worth emphasizing here that section 200 does not mandate remaining at the scene for the purpose of preparing a section 199 Motor Vehicle Accident Report. Section 200 is complied with once the motorist provides the following: his or her name, address, driver's licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number.

[101] On the facts of our case, Sgt. Harker did not have grounds to believe that the accused was involved in an accident involving another motorist or person. Similarly, Sgt. Harker did not have grounds to believe that there were witnesses to the accident. He did not know what he was dealing with, and candidly admitted so. More troublesome, Sgt. Harker articulated that his purpose in making the arrest under section 200 was to somehow further his completion of his section 199 report. While he claimed he was arresting for a violation of section 200, his stated purpose leads me to conclude that he was in fact, at least in part, arresting Ms. Woychyshyn for a violation of section 199. As noted, section 217 does not authorize the arrest of an individual for section 199 offences; therefore, an arrest for violation of that section is unlawful. I am therefore of the view that the officer lacked the authority to arrest for the purpose of compelling what he perceived to be unsatisfactory compliance with section 199. His additional evidence about arresting Ms. Woychyshyn for the purpose of triggering her right to counsel disclosed a high degree of confusion about the lawful basis for his actions. Ultimately, I therefore conclude that Sgt. Harker did not have the subjective grounds required to make an arrest pursuant to sections 217 and 200 of the HTA, and instead used his arrest power for purposes not authorized by statute.

[102] An unlawful arrest is by definition an arbitrary detention. I therefore conclude that Ms. Woychyshyn was the subject of an arbitrary detention when Sgt. Harker arrested her.

g) The Arrest for Impaired Driving

[103] I will start by observing that the constellation of factors discerned by Sgt. Harker provided him with what I believe to be objectively reasonable grounds to make an arrest for the offence of impaired driving.

[104] However, the key observations that provided Sgt. Harker with his grounds were observations that occurred during the course of earlier unlawful [and therefore arbitrary] detentions. But for the prolonged and unjustified holding of Ms. Woychyshyn in the cruiser and but for the unlawful arrest for the alleged section 200 offence, Sgt. Harker may never have had the opportunity to smell the alcohol on the breath of the accused. The odour was first discovered during a search incident to the HTA arrest, which occurred long after the justification for the section 199 detention had ended. In my view, I would have to speculate as to whether Sgt. Harker or Cst. Gowlett would ever have had the opportunity to smell alcohol on the breath of the accused, but for the arbitrary detentions to which the accused was subjected.

[105] I am therefore satisfied that but for the earlier arbitrary detentions, there is no basis for concluding that Sgt. Harker would have possessed sufficient grounds to arrest Ms. Woychyshyn for impaired driving. Similarly, there is no basis for concluding that there ever would have been sufficient grounds to make a breath demand.

[106] It has long been held that during a judicial review of the constitutional validity of the issuance of a search warrant, the reviewing judge must excise unconstitutionally obtained evidence from the Information to Obtain a Search Warrant before considering whether or not a warrant could have issued on the basis of solely the lawfully obtained evidence. In this way, the state is prevented from benefiting from the illegal acts of police officers. This principle applies to protect the reasonable expectation of privacy of every individual in this country.

See R. v. Grant, [1993] S.C.J. No. 98

[107] In my view, this same principle applies equally to the right of every individual to be free from arbitrary detentions and arrests. I note that upon both arrest and detention, the privacy interests of the suspect are necessarily impacted. For example, an arrest triggers the power to search incident to a lawful arrest. It also empowers the police to place the arrestee into a custodial facility where the expectation of privacy is greatly reduced; and of course, on the circumstances of Ms. Woychyshyn, the factual grounds for arrest also provided the police with grounds to make a breath demand, which is a statutorily authorized seizure.

See R. v. Mastromartino, et al., [2004] O.J. No. 1435 (SCJ)

See also R. v. Bernshaw, [1995] 1 S.C.R. 254

R. v. Einarson, [2004] O.J. No 852 (Ont. C.A.)

[108] Consequently, when assessing the validity of the arrest for Impaired Driving, I have excised the unconstitutionally obtained evidence when assessing the justifiability of the arrest.

[109] Sgt. Harker himself conceded that, prior to Ms. Woychyshyn's fateful burp during her unlawful arrest, he would not have subjectively possessed grounds to arrest her for impaired driving. Without the presence of subjective grounds, the court need not go further and assess the objective reasonableness of those grounds, but I will in this circumstance. In my view, his conclusion on this point was the only reasonable conclusion. Without the odour of alcohol emanating from Ms. Woychyshyn, there was no reasonable basis to conclude that Ms. Woychyshyn's behaviours were the product of alcohol consumption. Prior to the burp, the officer was dealing with a distraught and confused woman who suffered from PTSD, who provided unsatisfactory answers about an obvious accident, and who handed over an unconsumed bottle of alcohol. He did not have any evidence to support the conclusion Ms. Woychyshyn had consumed an alcoholic beverage. As I say, that evidence came from the burp and the subsequent inventory search of Ms. Woychyshyn's vehicle, when an empty bottle and partially empty bottle of alcohol were located.

[110] I therefore conclude that without the evidence obtained from the prior arbitrary detentions, there does not exist sufficient evidence for the arrest of Ms. Woychyshyn for impaired driving. Consequently, I have concluded that this arrest was unlawful and arbitrary.

3. WAS THE APPLICANT THE SUBJECT OF AN UNREASONABLE SEARCH AND SEIZURE

a) The Search Incident to Arrest

[111] The common law permits searches incident to a valid arrest. As indicated have concluded that Ms. Woychyshyn's arrest for an alleged violation of section 200 of the HTA was unlawful. It follows that the search of Ms. Woychyshyn incident to that arrest was unlawful.

[112] Even if the arrest had been lawful, I have some concerns about the validity of the search. As noted, Ms. Woychyshyn was left alone in the police cruiser for about an hour. Sgt. Harker never searched her prior to placing her in the cruiser. He strongly demonstrated that he did not have any serious concerns about his safety or hers. On the basis of his evidence, I conclude that Sgt. Harker searches every individual after an arrest regardless of the particular circumstances of the particular arrest, because of his observation that sometimes some people change their demeanour after being arrested. From this evidence, I conclude that Sgt. Harker's basis for the search incident to arrest was more a matter of routine than it was responsive to the situation before him. Nevertheless, I need not address the issue further, having concluded that the search was unlawful because the arrest was unlawful.

[113] Having concluded that this warrantless search incident to arrested was unlawful, it follows that it must be deemed to be a prima facie unreasonable search. In the circumstances I find that the Crown has failed to rebut the presumption of unreasonableness. I conclude that the search was therefore an unreasonable one.

b) The Breath Demand and Resulting Breath Samples

[114] As noted, the police are not entitled to rely upon unconstitutionally obtained evidence when seeking to justify the constitutionality of a search. Having concluded that, but for the arbitrary detentions there could not exist reasonable and probable grounds to arrest Ms. Woychyshyn, I must also conclude that there could not exist reasonable and probable grounds to make a breath demand.

[115] The warrantless taking of the breath sample must therefore be deemed to be an unlawfully obtained sample and prima facie unreasonable. Having regard to all of the circumstances, as described above, I have concluded that the Crown cannot rebut the presumption of unreasonableness. The breath demands were therefore taken in violation of section 8 of the Charter.

4. EXCLUSION OF EVIDENCE

a) The Law

[116] An applicant who establishes a breach of his or her Charter rights, seeks redress under subsection 24(1) of the Charter. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.

[117] Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[118] The subsection reveals that the party seeking exclusion must establish two things:

(1) the evidence sought to be excluded was obtained in a manner that infringed a Charter right; and

(2) the admission of the evidence would bring the administration of justice into disrepute.

The applicant must establish these two things on a balance of probabilities.

See R. v. Pino 2016 ONCA 389

[119] In determining whether or not the evidence was "obtained in a manner that infringed or denied any rights or freedoms" of the applicant, the court should be guided by the following considerations:

(1) the approach should be generous, consistent with the purpose of s. 24(2);

(2) the court should consider the entire "chain of events" between the accused and the police;

(3) the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;

(4) the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;

(5) but the connection cannot be either too tenuous or too remote.

See R. v. Pino, supra, at para 72.

[120] Judicial interpretation of subsection 24(2) has continuously evolved since the enactment of the Charter. R. v. Grant, [2009] S.C.R. 353, is now the leading authority on the interpretation and application of subsection 24(2), particularly the second branch of the test codified in that subsection.

[121] In Grant, McLachlin C.J.C. and Charron J.A. noted that the subsection is concerned with the maintenance with the rule of law and with the defence of Charter rights in the justice system as a whole. The court noted that a Charter breach in and of itself brings the administration of justice into disrepute. However, in their view, subsection 24(2) was concerned with the future impact of the admission/exclusion of the evidence on the repute of the justice system. In other words, the court was concerned with whether admission/exclusion would do further damage to the repute of the justice system. In doing so, the court noted that the analysis required a long-term view, one aimed at preserving the integrity of our justice system and our democracy.

[122] Interpreting subsection 24(2) from this perspective, the majority in Grant held that a trial court must assess and balance the effect of the admission of the evidence on society's confidence in the justice system having regard to:

(1) The seriousness of the Charter-infringing state conduct [admission may send the message that the justice system condones serious state misconduct];

(2) The impact of the breach on the Charter-protected interests of the accused [admission may send the message that individual rights count for little]; and

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

See Grant, supra.

[123] The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith", and should not be encouraged or rewarded through the admission of evidence.

See Grant, supra, at para 75.

[124] Needless to say, deliberate state misconduct will tend to support the exclusion of evidence.

See Grant, supra.

[125] The third branch of the Grant analysis places emphasis on the truth seeking function of the trial process. This portion of the analysis requires the court to balance concerns about the integrity of the justice system with the interests of seeking the truth. Admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the Crown's case. Conversely, the exclusion of highly reliable evidence may have a more negative impact upon the repute of the justice system, if exclusion proves fatal to the prosecutions ability to prove its case.

b) Application of the Law to the Facts In this Case

(1) Evidence Obtained in a Manner that Infringed Charter Protected Rights

[126] This case involves in investigation that began as a lawful detention and inquiry about an apparent traffic accident. Unfortunately, after about 15 minutes, Sgt. Harker had effectively ceased efforts at preparing a Motor Vehicle Accident Report [having interviewed Ms. Woychyshyn and examined he car] and making inquiries about Ms. Woychyshyn's sobriety. At this juncture, he appears to have been frozen in indecision. For almost an hour, while seeking advice about his next steps, Ms. Woychyshyn remained detained. Having regard to the lack of any effort over the course of that hour to ask any further questions about the accident, and the lack of any post arrest efforts to make any similar inquiries, I have concluded that this period of additional detention in the police cruiser was not reasonably necessary for the officer to fulfill his duties under section 199 of the HTA. Having regard to the lack of grounds to detain Ms. Woychyshyn under the Mental Health Act, the lack of grounds to arrest Ms. Woychyshyn, the lack of grounds to make any demand under s. 254 of the Criminal Code, and the lack of grounds to support a common law investigative detention, I have concluded that Ms. Woychyshyn's ongoing detention was arbitrary. Similarly, I have concluded that the arrest, pursuant to section 200 of the HTA was unlawful and consequently arbitrary. The pat down search of Ms. Woychyshyn was the direct result of the unlawful decision to arrest Ms. Woychyshyn, which makes this search an unreasonable search. It was during this search that Ms. Woychyshyn burped and triggered the resumption of an impaired driving investigation. I have also concluded that during the course of this arbitrary detention, Sgt. Harker violated Ms. Woychyshyn's right to counsel.

[127] The key piece of additional evidence that provided Sgt. Harker with sufficient subjective grounds to arrest Ms. Woychyshyn and make a section 254(3) breath demand [the odour of alcohol emanating from her breath after the burp] arose during the course of Ms. Woychyshyn's arbitrary detentions, unreasonable and the violation of her right to counsel. The seizure of Ms. Woychyshyn's breath samples flowed from that breath demand. I therefore conclude that there exists a sufficient connection between the Charter infringing state conduct and the evidence the applicant seeks to exclude.

(2) Seriousness of the Charter Infringing State Conduct

[128] Sgt. Harker struck me as a very empathetic man and a very compassionate man. I was impressed with that aspect of his character. However, just as police power is not co-extensive with police duty, police power is not co-extensive with police compassion.

[129] For a period of about an hour Sgt. Harker was in a state of indecision. He did not know what he was dealing with. For close to an hour period of substantial uncertainty and indecision, Sgt. Harker detained Ms. Woychyshyn without lawful authority in a locked cruiser while he spoke with his Acting Inspector and sought advice. In the face of this uncertainty and the lack of any clear authority to hold her, he should have let her go. This is serious state misconduct, despite what I consider Sgt. Harker's laudable sense of duty and concern and compassion for Ms. Woychyshyn. Sgt. Harker was an extremely experienced police officer. He served on the force for 25 years. He ought to know that he should refrain from exercising his authority until he is satisfied he has that authority. I cannot construe his over holding of Ms. Woychyshyn as a breach conducted in good faith.

[130] Sgt. Harker then purports to have arrested Ms. Woychyshyn pursuant to sections 217 and 200 of the HTA, to further an investigation under s. 199 of the HTA, despite the fact that the HTA does not authorize arrests of individuals who fail or refuse to comply with section 199. In my view, the power of arrest was used at least in part for an unlawful purpose. In consider this conduct to be very serious state misconduct.

[131] Sgt. Harker also concedes, in retrospect, he ought to have complied with the duties imposed by s. 10(b) of the Charter a lot sooner. In my view, the denial of the right to counsel during a rather prolonged period of unlawful detention constitutes serious state misconduct. Justice G.A. Martin once described the right to counsel as one of "superordinate" importance. It is the means by which individuals can gain an understanding of all their rights, obligations, and vulnerabilities; and it is the means by which individuals may then begin to assert their other rights. While effectively conceding a breach of Ms. Woychyshyn's right to counsel, Sgt. Harker offered no explanation for this breach. In the circumstances, I cannot consider the breach to be trivial or the product of a good faith error. I therefore consider the breach of the right to counsel to be serious Charter infringing state conduct.

See R. v. McKane, [1987] O.J. No. 557

[132] While the taking of the breath samples from Ms. Woychyshyn involved only a minimal intrusion upon the privacy interests of Ms. Woychyshyn, I am mindful of the fact that the authority to take these samples arose from the discovery of evidence that was discovered as a result of violations of Ms. Woychyshyn's right against arbitrary detention. The taking of the samples was the culmination and consequence of an ongoing transaction that was replete with Charter breaches.

[133] In summary, in view the entire occurrence and the series of interrelated Charter breaches within it, I consider the Charter infringing state conduct to be serious. This conclusion favours the exclusion of the evidence.

(3) The Impact Upon the Charter Protected Rights of the Accused

[134] To borrow a phrase from Moldaver J.A. in Aucoin, the prolonged detention of Ms. Woychyshyn in a locked cruiser for close to an hour after the last effort to ask any questions pertaining to the Motor Vehicle Accident Report or Ms. Woychyshyn's sobriety, "altered the nature and extent of … [Ms. Woychyshyn's] detention in a fairly dramatic way." The detention took on the air of a de facto arrest, albeit a groundless one.

[135] During this time, Sgt. Harker violated Ms. Woychyshyn's "superordinate" right, the right to counsel. The timely reminder of this right and the provision of a reasonable opportunity to exercise this right had the potential to mitigate a prolonged arbitrary detention.

[136] The subsequent unlawful arrest, pursuant to s. 200 of the HTA, also altered the nature and extent of Ms. Woychyshyn's detention in a fairly dramatic way. This arrest gave rise to an intrusion upon her reasonable expectation of privacy, in the form of a pat down search. This arrest also prolonged the detention for long enough for the police to obtain sufficient evidence to subjectively form the grounds to arrest Ms. Woychyshyn for the Impaired Driving charge, which in turn gave rise to the authority to detain Ms. Woychyshyn for an even longer period of time. During this prolonged detention, Ms. Woychyshyn was compelled to incriminate herself.

[137] Having regard to all of these circumstances, I conclude that there was a significant impact upon the Charter protected rights of Ms. Woychyshyn. This conclusion favours exclusion of the evidence.

(4) Society's Interest in Adjudicating the Case On its Merits

[138] There is an ongoing societal interest in having criminal charges adjudicated on their merits, except of course where there exist valid constitutional concerns. This case is no exception. I note here, that the evidence called on this matter suggests that the exclusion of the breath samples in this case will be fatal to the Crown's case. On the other hand, the admission of the breath samples is not necessarily fatal to the defence. There remains a live issue [given the conceded absence of a statutory presumption] about whether or not Ms. Woychyshyn's blood alcohol content at the time of driving was over the legal limit. I cannot of course, predict what evidence the defence may call on any bolus drinking issue, but it would appear to be a potential trial issue at this stage.

[139] In any event, it is still my view, that the societal interest in a trial on its merits is a that factor favours admission of evidence.

(5) Conclusion

[140] Having regard to the seriousness of the Charter infringing state conduct and the impact of the breaches upon the Charter protected rights of the accused, and having balanced those factors against society's interest in a trial on its merits, I have come to the conclusion that the admission of the evidence obtained during the course of the Charter violations will bring the administration of justice into disrepute.

[141] In coming to this conclusion, I have considered whether the Crown has established that the evidence would have been discovered even if no breaches had occurred. Having considered the evidence, I come to the conclusion that I would have to speculate as to whether or not the police would have obtained any of the impugned evidence but for the arbitrary detentions.

[142] I therefore exclude from the trial the results of all evidence obtained during the course of the Charter breaches, including any analysis of Ms. Woychyshyn's breath samples, the observations of the odour of alcohol emanating from Ms. Woychyshyn, and the evidence of the observation of the dried vomit.

Released: September 28, 2017

Signed: Justice C.A. Parry

Footnotes

[1] One that exceeds the damage amount prescribed by regulation

[2] The information required does not include all the information that is required for a s. 199 Motor Vehicle Accident Report. The statute only requires the following information: his or her name, address, driver's licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number.