Court File and Parties

Ontario Court of Justice

Date: 2017-11-30

Court File No.: Region of Durham 998 16 34967

Between:

Her Majesty the Queen

— and —

Lawrence Orde

Before: Justice De Filippis

Heard on: October 11, 2017

Reasons for Judgment released on: November 30, 2017

Counsel:

• Mr. F. Stephens, counsel for the Crown
• Mr. B. Scott, for the defendant

Introduction

[1] The defendant was charged with having care or control of a motor vehicle with a blood alcohol level that exceeded the legal limit ("over 80"). The Defence claimed that the breath samples were obtained in violation of the Charter. Two days were set aside for the trial – October 11 and November 30, 2017.

[2] I reviewed the written application filed by the Defence and the response by the Crown. It appeared to me that the application had no chance of success. Before hearing evidence, I explained my tentative view and offered Defence counsel the opportunity to persuade me otherwise. In doing this, I quoted from R v Jordan 2016 SCC 27:

… trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous". This screening function applies equally to Crown applications and requests….

[3] During this discussion Defence counsel abandoned the Charter claim set out in the written material but orally, and with prior notice to the Crown, raised a new one: It is alleged that while awaiting the arrival of the approved screening device (ASD), the officer who had detained the defendant handcuffed him and placed him in his cruiser while he went to a nearby coffee shop. It is claimed this conduct violated the defendant's rights as guaranteed in sections 8 and 9 of the Canadian Charter of Rights and Freedoms. This argument has merit and I suggested that it is the only issue that matters; that is, having regard to the written material that had been filed, there was no controversy that the breath samples were otherwise taken in accordance with proper procedures and would constitute proof of guilt.

[4] I suggested that the relevant facts should be stipulated as a matter of record and the trial focused on the one Charter issue. I further suggested that on this basis, the second day of trial could be vacated and made available for other cases. In doing so, I again quoted from Jordan:

... All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11 (b) of the Charter. We reiterate the important role trial judges play in curtailing unnecessary delay and "changing courtroom culture".

Both counsel agreed to these suggestions and two witnesses were released. This trial proceeded with testimony from one officer and the defendant and only with respect to the single issue in question.

Evidence

[5] On Sunday, May 1, 2016 at the Town of Whitby, PC Villena heard a loud muffler sound and saw a motor vehicle travelling at a high rate of speed on Dundas Street East. The officer activated the emergency lights on his cruiser and caused the vehicle to stop. The defendant was the driver and lone occupant. When told the reason for the stop, the defendant replied, "hello sunshine". In speaking to the defendant, the officer noted he had glossy eyes and detected a slight odour of alcohol on his breath. When asked if he had been drinking, the defendant reported that he had consumed two beers.

[6] PC Villena radioed for an ASD to be brought to the scene. It was 5:13 PM. He asked the defendant if he had a lawyer and obtained the name of the present Defence counsel. At 5:23 PM, PC McQueen arrived with the ASD but it was quickly determined that it was not in working order. PC McQueen departed to obtain another device. While waiting, the defendant contacted his lawyer by means of his cellular telephone and left a message. At 5:34 PM, PC McQueen returned with another ASD. The defendant complied with an ASD demand and registered a "fail". He was, therefore, arrested for the present offence and taken to a police station. At that location, he contacted counsel again and spoke to Ms. Samet, an associate at the firm. The defendant complied with the demand to provide samples of his breath into an approved instrument and registered two (truncated) readings of 210 – approaching three times the legal limit.

[7] The evidence summarized above is consistent with the notes taken at the time of the events by PC Villena. What is not contained in those notes is this additional testimony: While waiting for the second ASD to arrive, he went to the coffee shop across the street. He explained that he did so because of an urgent need to use the washroom facilities. He does not recall if he handcuffed the defendant and/or placed him in the rear of the cruiser. However, he does remember that he had taken the defendant's car keys and was satisfied he could not drive away. The officer testified that he did not make a note of these events because he did not believe them to be important.

[8] When pressed in cross-examination about whether he had handcuffed the defendant while he went to the washroom, PC Villena stated it "could have happened", but he does not recall and "I do not think I would do it". He agreed that it is not his practice to handcuff detainees while awaiting the arrival of an ASD. The officer confirmed he had no concern about the defendant leaving the scene while left alone and that there were no "officer safety issues". PC Villena testified that he does not believe he was gone for up to seven minutes – "I think it was a couple of minutes". He does not remember that on his return the defendant said, "why are you putting me through this". When pressed about his lack of notes, he said, "I wasn't thinking".

[9] The defendant is married with one child and works as a used car manager at a local dealership. He agreed with the narrative given by PC Villena, except for the matter of the handcuffs. He testified that while waiting for the second ASD to arrive, the officer told him that, for his safety, he would place him in the rear of the cruiser. The defendant was handcuffed "tightly" from behind and was uncomfortable. He stated that he was surprised to see the officer walk to a nearby coffee shop and insisted that he was gone for seven to eight minutes. He thought the officer went to buy a coffee but concedes he did not see one in his hand on his return. Until this trial, it had not occurred to him that the officer needed to use the washroom.

Analysis

[10] PC Villena reasonably suspected that the defendant had alcohol in his system while having care and control of a motor vehicle. As such, he had the right to detain and subject him to an ASD demand. I have no doubt he left the defendant because of an urgent need to use the washroom. There is no reason to reject his explanation; there is nothing to suggest he went there for food or coffee. I also have no doubt he handcuffed the defendant and placed him in the rear of his cruiser while he was gone. There is no reason to reject the defendant's testimony on point; moreover, the officer has no notes and no clear memory of the event. I also accept the defendant's statement that the officer was gone for seven or eight minutes. This is consistent with the eleven-minute delay in the arrival of the second ASD and PC Villena's testimony that he returned from the washroom just as that device arrived.

[11] In the normal course there is no right to handcuff a person before administering the ASD. The reason for this is simple and important: The ASD is used when an officer lacks "reasonable and probable grounds" to believe a person has committed a crime. This so-called "roadside demand" is permitted when the officer has a "reasonable suspicion" that the person has care or control of a motor vehicle with alcohol in his/her system. This is not an offence; a crime is committed only if the person's blood alcohol level is above the legal limit. The ASD is an investigative tool to determine if this is the case. If so, the test result provides the requisite grounds to arrest and handcuff the person.

[12] Absent exceptional circumstances, courts have ruled that handcuffing a person as part of the ASD demand is a violation of the right to be free from unreasonable search and seizure and arbitrary detention as set out in sections 8 and 9 of the Charter. For example, see R v Romaniuk, [2017] O.J. No. 3016 (Ont. C.J.), R v DiMaria, [2012] O.J. No. 2067 (Ont. C.J.), and R v Comrie, [2016] A.J. No. 1422.

[13] In my view, PC Villena's urgent need to use the washroom is not an exceptional circumstance that justified handcuffing the defendant as part of the ASD demand. I hasten to add that in coming to this conclusion, I have taken into account that the officer had obtained the defendant's personal information, took possession of his car keys, and did not consider him to be a flight risk or present safety issues. In these circumstances, the proper course of action would have been to instruct the defendant to remain at the scene until the officer returned.

[14] Having regard to the facts of this case, I find that the defendant's rights pursuant to sections 8 and 9 were breached. I am also of the opinion that the breath test results, obtained as a result of the ASD process, should be excluded from evidence pursuant to section 24(2) of the Charter.

[15] The Supreme Court of Canada, in R. v. Grant, 2009 SCC 32, held that three factors are relevant to an assessment of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute: (1) an evaluation of the seriousness of Charter-infringing state conduct; (2) the seriousness of the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in an adjudication of the case on its merits. After considering these factors, a court must balance the assessments under each line of inquiry in deciding the ultimate issue.

[16] The seriousness of the Charter-infringing conduct is mitigated when the police make an honest and reasonable error regarding the scope of their legal authority. However, ignorance of Charter standards is not equated with good faith and must not be rewarded or encouraged by the court. It should have been clear to PC Villena that he had no right, in the circumstances of this case, to handcuff the defendant in the absence of reasonable and probable ground to believe an offence had been committed. As such, the infringing state conduct militates towards exclusion of the road side screening evidence.

[17] The handcuffing of the defendant had a serious impact on his liberty interests and dignity. Respecting the defendant's rights should not have been seen as inconsistent with the officer's need to use washroom. The violation of the defendant's section 8 and 9 Charter rights were temporally and causally connected to the seizure of his breath samples. In my view, the impact of the breaches were relatively serious and this factor favours exclusion.

[18] Drinking and driving has the potential to kill or otherwise harm members of the public. The breath test results are reliable physical evidence and its admission is essential to the truth seeking function and conduct of the trial. The value of this evidence was considerable. This favours inclusion.

[19] In balancing the factors established by the Supreme Court, I find that the evidence in question must be excluded. This conclusion is fatal to the prosecution.

[20] The charge is dismissed.

Disposition

Released: November 30, 2017

Signed: Justice J. De Filippis

Addendum

With the release of these reasons, I suggested that it might be appropriate, having regard to the fact that the defendant was otherwise proven to be guilty, with very high readings, for me to exercise my discretion, at common law, to require the defendant to enter into a peace bond. Both counsel agreed to this suggestion and the defendant elected not to show cause. Accordingly, I ordered him, for a period of one year, not to operate a motor vehicle unless his blood alcohol level is at zero.