Court Information
Court File No.: Toronto 16-15007460 Date: 2018-03-29 Ontario Court of Justice
Between: Her Majesty the Queen — and — Juan Zuniga-Pflücker
Before: Justice D. Moore
Heard on: November 23 and 24, 2017 and January 9 and 10, 2018
Reasons for Judgment released: March 29, 2018
Counsel
Andrew Max — counsel for the Crown
Carolyn Kerr — counsel for the Defendant
A. Overview
[1] Mr. Zuniga-Pflücker is charged with the offences of "Over 80" and "Impaired Driving" allegedly committed on September 17, 2016.
[2] With the consent of the parties the trial proceeded in a "blended" fashion, hearing evidence on both the Charter application and trial proper together.
[3] The defendant has applied for the exclusion of breath test results as well as observations and video recordings made of him following his detention by the police during the early morning hours of September 17, 2016. It is my decision that the application must be allowed. These are my reasons for doing so.
B. Issues
(a) Did objective reasonable and probable grounds exist to justify the demand for breath samples pursuant to s. 254(3) of the Criminal Code?
(b) Did objective reasonable and probable grounds exist to justify the defendant's arrest for the offence of "Impaired Driving"?
(c) Was the manner in which the defendant was held in custody, and in particular the manner and duration of his handcuffing, reasonable?
(d) Did the arrest and detention of the defendant and seizure of breath samples violate sections 8 and/or 9 of the Charter?
(e) Should the evidence be excluded pursuant to s. 24(2) of the Charter?
C. Factual Background
[4] On September 16, 2016 the defendant went out for the evening with Prof. Michelle Anderson, a work colleague who he has known for many years and a friend of hers, Prof. Michelle Acker. The purpose of the evening aside from the normal social niceties was to show Prof. Acker around Toronto as she was visiting from Ohio. Accordingly, they went out for dinner at the restaurant at the CN Tower which has arguably one of the best views of the city. The defendant drove the trio to the restaurant in his Toyota Highlander (an SUV). After dinner they went out for a drink at the rooftop lounge of the Park Hyatt hotel, the location once again chosen for its spectacular view of the city. The trio departed at approximately 1:15 AM on September 17, 2016 and it was the defendant's intention to drop off Prof. Anderson and Prof. Acker at Prof. Anderson's residence and then to proceed home. Accordingly, he drove north on Avenue Road towards Prof. Anderson's residence.
[5] During the evening hours of September 16, 2016 Sgt. Dubreuil and P.C. Aguiar, along with other officers of the Toronto Police Service, were detailed to conduct a mobile "RIDE" spot-check utilizing a large Winnebago-style vehicle that had been adapted specifically for this purpose. The vehicle contains a breath room where samples of breath can be provided into an approved instrument "on the spot", serving the dual purposes of efficient use of police resources and minimizing the length of detention for persons required to provide samples. The spot-check was initially set up at another location in the city and then moved to Avenue Road just north of Pears Avenue just after midnight on September 17, 2016.
[6] Shortly after setting up at the Avenue Road location at approximately 12:30 a.m. P.C. Aguiar, who was the qualified breath technician that evening, noticed that the cable that attached the keyboard to the Intoxilyzer 8000 C had been damaged and he would thus not be able to properly operate the device. P.C. Aguiar decided that rather than attempting to obtain a new keyboard and/or keyboard cable, arrested parties would be transported to a police division to provide samples rather than providing them at the scene. He claimed that he advised Sgt. Dubreuil of this fact at the time, but Sgt. Dubreuil testified that he was unaware of the issue until P.C. Aguiar brought it to his attention sometime after the defendant's arrest.
[7] The defendant was stopped at the RIDE spot-check by Sgt. Dubreuil at approximately 1:25 AM. The defence concedes that following a brief initial interaction between the defendant and Sgt. Dubreuil at the roadside a lawful basis for a demand for a screening device test existed and the Sgt. turned over the defendant to P.C. Aguiar for this purpose.
[8] P.C. Aguiar initially made a roadside screening demand but abandoned that demand and did not administer a screening device test. Instead he arrested the defendant for impaired driving and made a demand for breath samples pursuant to s. 254(3) of the Criminal Code.
[9] The basis for the change from screening demand to arrest and breath demand was further observations of the defendant purportedly made by P.C. Aguiar during the approximate 50 metre walk from the roadside to the RIDE truck undertaken for the purpose of administering the screening device test. If his evidence was accepted, particularly unsteadiness on his feet and slurring of speech in addition to a number of other indicia of impairment, it would provide an objective basis for the arrest and breath demand.
[10] The defendant was held in custody in handcuffs from the time of his arrest until brought into the breath room in the RIDE truck for the taking of the first breath sample.
D. Analysis – ss. 8 and 9
[11] The defendant argues that while the initial screening device demand was lawful, the Crown has failed to prove on a balance of probabilities that the subsequent arrest for impaired driving and demand for breath samples were based on reasonable and probable grounds and thus lawful. In the absence of a lawful arrest and demand the seizure of the defendant's breath samples breached section 8 of the Charter and his detention in police custody for the purpose of obtaining the samples and continuing the arrest was unlawful and in violation of section 9 of the Charter. The defendant further argues that the violations were exacerbated by the handcuffing of the defendant when there was no need to do so and by unnecessarily extending the length of the detention by failing to obtain a replacement keyboard when the difficulty with the instrument was first noticed.
[12] I have no difficulty whatsoever in accepting the evidence of Sgt. Dubreuil. He appeared to me to be completely honest and forthright and not attempting in any way to exaggerate his observations in a manner that would better support a conviction for the offences charged. There were no internal contradictions in his testimony. It was logical and accorded with reason and common sense. His testimony was corroborated by the defendant's testimony.
[13] I reach the opposite conclusion with respect to the evidence of P.C. Aguiar. He appeared to have a strong interest in the outcome of the proceedings and his testimony often more closely resembled submissions that might be made by the Crown as opposed to an honest and candid recounting of events. I note in particular the following areas of his evidence that caused me specific concern:
His description of how the vehicle came to a stop contradicted that of Sgt. Dubreuil and appeared to be exaggerated for the purpose of making the defendant's driving seem worse than it was;
He described the defendant as being unsteady on his feet when exiting the vehicle to the extent that Sgt. Dubreuil had to grab hold of him to steady him. The Sgt. did not recall any such interaction taking place and would have made a note of it had it happened. I prefer Sgt. Dubreuil's evidence on this issue;
He testified that he advised his Sgt. of the issue with the broken cable at the time that he discovered it (a little less than an hour prior to the stop). Sgt. Dubreuil denied that this was the case and indicated that he only learned of the issue after the stop of the defendant. I accept Sgt. Dubreuil's evidence on this issue as it accords with reason and common sense. Immediately after being advised of the issue he arranged for a replacement instrument to be delivered to the scene (which was the sensible thing to do in the circumstances and should have been done when the issue was first discovered). I find that it is the action that the Sgt. would have taken had he been advised of the issue at around 12:30 a.m.;
His explanation for not requesting a replacement keyboard at the time the issue was discovered makes no sense whatsoever since it essentially made it impossible for the RIDE stop to operate as it was designed to do: maximizing the use of police resources and minimizing the length of detention of persons arrested;
His description of the defendant's walking as "deliberate" appeared to be a contrivance to create an indicia of impairment where none existed;
At one point in his notes he indicated that the indicia of impairment were constant throughout his dealings with the defendant but at other points in his notes and during his testimony he appears to indicate that the state of the defendant's eyes changed over time and included red, bloodshot, and glassy states. He clearly articulated that these specific words mean very different things but was unable to sensibly relate how it was that the state of the defendant's eyes changed over time but yet remained constant;
When first confronted with the defence theory that the defendant was handcuffed prior to entering the RIDE truck his initial response was that he didn't remember, and then when the question was clarified for him there was a long pause before he committed to the handcuffing definitely taking place inside the RIDE truck;
His description of the defendant's speech as obviously slurred throughout his dealings with him was not supported by the video evidence. Although there were a couple of words that did appear to be slurred I find the officer's evidence to be, charitably, an extreme exaggeration. While I certainly accept that in many cases an officer's opinion based on training and experience coupled with very close first-hand observation may be given deference in my view the audio and video evidence in this case completely contradicts the evidence of the officer. Further, such deference would require an officer's evidence to be very detailed and a clear articulation of the basis for the opinion (by describing how specific words were slurred, for example) would have to be given. That was not the case here, P.C. Aguiar's evidence amounted to little more than a bare assertion of slurring and then when confronted with the video evidence he chose to attack the quality of the video rather than support the basis of his opinion. Essentially he argued that it was the video and not his testimony that was unreliable. I find the contrary to be the case;
When confronted in cross-examination with the contradiction between his claimed observations and the video evidence he attempted to take on the role of an advocate and in so doing revealed his bias;
In cross-examination, for the first time he "remembered" an additional instance of unsteadiness during the walk between the RIDE truck and the police cruiser that was not contained in his notes. In my view this experienced officer would have made a note of such an action had it occurred;
When questioned about the continuous handcuffing of the defendant up until the first breath test his answers were extremely lengthy, often nonresponsive, speculative and illogical. While his discussion of the need to build a "rapport" with an arrested person might make sense in some circumstances, in this case I believe it was an attempt to provide an ex post facto justification for the continued handcuffing. I find that the handcuffing was in fact done either as a standard practice or for the officer's convenience without the officer ever really giving any reasoned consideration to the defendant's comfort or the need to minimize the deprivation of his liberty;
The defendant was in the custody of P.C. Aguiar, obligating the officer to be mindful of his health and safety. The in-car camera clearly records the defendant experiencing significant discomfort and pain as a result of the handcuffs. P.C. Aguiar either observed this discomfort and ignored it or alternatively failed to take appropriate measures to make sure that the defendant was comfortable. This despite the fact that on numerous occasions in his evidence the officer professed to be concerned about the defendant's liberty and well-being;
When confronted with an inaccuracy contained in the alcohol influence report that he prepared indicating that a secondary caution was given to the defendant when in fact it was not (as is clear from videotape) P.C. Aguiar admitted his mistake but then went on to provide a convoluted explanation as to how his handwritten notes in both his memo book and in the alcohol influence report are more accurate than the "checkbox" entries on the alcohol influence report. This obviously raises concerns about the reliability of his evidence as a whole since this error was only discovered as a result of the video recording and leaves open the question of the reliability of other portions of his evidence where the observations were made at a time when no video was taken;
He further damaged his credibility and reliability in his response to cross-examination on the issue of errors in a synopsis that he prepared. Similar to his testimony with respect to the alcohol influence report, he readily agreed that the errors were there but then sought to justify or excuse the errors on the basis that the synopsis either wasn't a very important document or was not something upon which he was "relying on in his testimony" and proceeded to provide a series of lengthy explanations that were often illogical and nonresponsive to the questions asked. It is in this area of his evidence where he most clearly crossed the line from witness to advocate.
[14] While the above list is not exhaustive of all the issues I had with his testimony it does I think set out the most significant areas of concern and justifies my conclusion that I must reject his testimony in its entirety save and except for those occasions where it is corroborated by other evidence. Although any one or even several of the instances listed above might be excused, the cumulative effect of all (or even most in the event that I am in error about one or the other of the examples) requires me to reject his evidence.
[15] The defendant also gave evidence. For the most part I found that it was reasonable, credible, and reliable. For instance, I completely accept his explanation for his odd driving being the result of initially thinking that the RIDE stop was an accident of some sort. I also accept his testimony that the receipt found on him for two bottles of wine when searched was actually from a purchase he had made at the LCBO and not for the purchase of wine at the restaurant that evening. I also accept his explanation for being confused about the location of the stop being south of Davenport Road as he often confuses Davenport Road with Dupont Road as they cross paths near Spadina Road. I did not accept however his repeated insistence that the alcohol he consumed had no or almost no effect on him. I think it is clear from the video that alcohol played a role in his exchange with P.C. Aguiar on the "south of Davenport" issue. Because of this lack of candour in his testimony I am unable to accept on a balance of probabilities his testimony that he was arrested and placed in handcuffs in the vicinity of his vehicle prior to being led to the RIDE truck.
[16] Given my concerns about the evidence of P.C. Aguiar I find myself in the position described by the Supreme Court of Canada in R. v. Jackson:
The allegations underlying such a finding and the ramifications for both the appellant and the officers are serious matters, not to be taken lightly. I accept that there will be cases in which a trial judge refuses to act on an officer's testimony where the trial judge has real concerns about the officer's veracity. See, e.g., R. v. Turpin, 2010 SKQB 444, 365 Sask. R. 67, aff'd 2012 SKCA 50, 393 Sask. R. 184. In such cases, where the officer's testimony is crucial, the Crown will have failed to prove on a balance of probabilities that its warrantless search was reasonable (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 161; R. v. Collins, [1987] 1 S.C.R. 265, at p. 278).
[17] I find that the Crown has not proven on the balance of probabilities that the s. 254(3) demand was based on reasonable and probable grounds and lawful. I thus find that the demand and consequent detention were unlawful and in violation of the defendant's ss. 8 and 9 Charter rights. Although I cannot conclude that the arrest took place in the vicinity of the car on a balance of probabilities, I do find based on P.C. Aguiar's perceived need to exaggerate his evidence that I am satisfied on a balance of probabilities that objective grounds did not exist at the time of the arrest, wherever it took place, and that therefore the defendant's arrest and the detention pursuant to that arrest were unlawful and in violation of s. 9 of the Charter.
[18] Since the arrest was unlawful and there was evidence that persons detained only for a s. 254(2)(b) screening device demand (for which it was conceded there was a lawful basis) would not be handcuffed I find the handcuffing of the defendant for slightly less than one hour to be an additional interference with his liberty beyond the detention.
[19] I find the failure of P.C. Aguiar to monitor, detect, and take steps to ameliorate the defendant's pain and discomfort while in the back of the scout car to be an aggravating feature of his unlawful detention.
[20] I find that the failure of P.C. Aguiar to request a replacement keyboard when he first noticed it to be negligent and the consequence of that negligence was to unnecessarily prolong the defendant's unlawful detention. It also led to the placing of the defendant in the rear of the scout car (for an ultimately abandoned transport to Traffic Services) where he experienced the greatest degree of pain.
E. Analysis – s. 24(2)
(i) Seriousness of the Charter-infringing state conduct
[21] The violations in this case are extremely serious. They arise not from an honest mistake in the heat of the moment or an honest misunderstanding of a technical issue but rather deliberately cross a very bright line that is drawn to safeguard the liberty of citizens in our society. The unlawful exercise of legitimate statutory warrantless search and arrest powers is extremely serious. Indeed, the police are authorized to take actions and use force which would be an offence if done by an ordinary citizen without lawful authority.
[22] P.C. Aguiar's lack of candour and apparent willingness to attempt to mislead the Court places the violations in this case at the very serious end of the spectrum. As stated by Cronk, J.A., "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority". The breach in this case was at the opposite end of the spectrum from the good faith technical error considered by the Court in Jennings.
[23] P.C. Aguiar's 18 years of experience as a police officer and status as a breath technician for over a decade also aggravates the seriousness of the breach. He was not a rookie officer still learning the ropes, but rather the sort of officer that more junior officers might look to as an example or for guidance.
(ii) The impact of the breach on the Charter-protected interests of the accused
[24] I have found that the defendant was arbitrarily detained without lawful authority, unnecessarily and unreasonably handcuffed causing him real pain beyond discomfort, and that the unlawful detention was unnecessarily prolonged due to negligence. The Crown submits that the proper interpretation of Jennings requires me to conclude that despite this the impact of the breaches in this case was minimal and this factor favours admission of the evidence.
[25] I certainly accept the Crown's submission that the Court's decision in Jennings is not simply obiter but rather the Court resolving competing lines of caselaw and directing trial judges as to how to proceed going forward.
[26] It is also clear that the line of authority following the decision of R. v. Au-Yeung that s. 8 breaches in breath sample cases, "automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples" is not to be followed. That line of authority to some extent incorporated a s. 9 analysis in considering a s. 8 breach.
[27] While I can understand how Jennings might be interpreted as requiring this factor to always favour inclusion in breath sample cases, I do not believe that in rejecting a perceived rule of automatic exclusion the Court intended to create a rule of automatic inclusion. This is particularly the case where, as here, a separate and distinct s. 9 violation has been found.
[28] I pause to note that one of the reasons breath samples are seen as minimally intrusive is that, unlike blood samples, they do not cause the subject to experience any pain. If breath samples did routinely cause pain, I do not believe that either the Supreme Court of Canada or the Court of Appeal would have characterized them as minimally intrusive.
[29] The Court is quite clear in Jennings that the liberty restrictions that normally accompany the provision of breath samples (arrest, detention and transport) are to be seen as minimally intrusive and ought not to weigh in favour of exclusion in considering the second Grant factor. The Court certainly leaves open the possibility that interferences with s. 9 beyond the norm might well, in a given case, weigh in favour of exclusion.
[30] The Supreme Court of Canada has been very clear that s. 9 violations, including violations that arguably have less impact than the violations in this case, can significantly impact on the Charter-protected interests of an accused favouring the exclusion of evidence. For example, in R. v. MacKenzie the Court held:
The appellant's privacy interest in the contents of his vehicle is lower than the privacy interest attached to the contents of his home. Nonetheless, the public enjoys a reasonable expectation of privacy when travelling down a highway. Although the dog-sniff search impacted the appellant's Charter-protected privacy rights, the impact was moderate, due to the brief and non-intrusive nature of the search. Likewise, the breach of the appellant's s. 9 rights was of fairly short duration. But an arbitrary detention of any length, including a pat-down by police, has a substantial impact on a person's Charter-protected interests. The cumulative impact of these breaches, while not severe, was more than minimal.
[31] Similarly the relatively brief detention and search of the accused in R. v. Harrison was characterized by the court as, "a significant, although not egregious, intrusion on the appellant's Charter-protected interests."
[32] I find the s. 9 violations in this case had a significant, although not egregious, impact on the defendant's Charter-protected interests.
[33] I find that this factor favours exclusion of the evidence, albeit not as significantly as the first factor.
(iii) Societal Interest in an Adjudication on the Merits
[34] Obviously this factor favours admission. The breath testing results and the video recordings in particular are reliable evidence and their exclusion will essentially eviscerate the Crown's case, certainly for the "Over 80" charge and most likely for the "Impaired Driving" charge. The carnage on the road caused by impaired driving makes any case such as this serious. However, if the Court needs to dissociate itself from the actions of the police, the effect of the exclusion on the repute of the administration of justice would be less in this case than in a case involving a fatality or serious injury.
(iv) Conclusion – Balancing the Interests
[35] I am guided by the decision of the Ontario Court of Appeal in R. v. McGuffie:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.
[36] Both of the first two factors favour exclusion in this case, the first much stronger than the second but both in my view are strong and not "close calls". The evidence must be excluded.
[37] Even if I had found that the second factor favoured admission the breaches in this case are so serious and the need for the Court to dissociate itself from the actions of P.C. Aguiar is so strong I would have still have ordered the evidence excluded.
[38] I order that the breath test results and all observations made of the defendant following his unlawful detention (including the various video recordings) are to be excluded pursuant to s. 24(2) of the Charter.
Released: March 29, 2018
Signed: Justice Daniel Moore
