Court Information

Ontario Court of Justice

Date: 2018-02-11

Court File No.: Central West region 17 – 3852

Parties

Between:

Her Majesty the Queen

— AND —

Richard Bullock

Before the Court

Justice: Anthony F. Leitch

Heard: Friday, February 2, 2018

Reasons for section 7 Charter ruling released: February 11, 2018

Counsel

For the Crown: James Nadel

For the Defendant Richard Bullock: Philip Patterson

Decision

Leitch J.:

Application and Relief Sought

[1] The defendant has applied under sections 7 and 24(2) of the Charter of Rights and Freedoms to exclude the evidence of a refusal to take a breathalyzer test. He seeks to exclude the words of the refusal captured on a breath room videotape, recording the presentation of the Intoxilyzer to the defendant, showing his unequivocal refusal to provide samples of his breath. The defendant bears the onus on the balance of probabilities of showing a violation of section 7 and that the appropriate remedy is the exclusion of evidence under section 24(2). Mr. Bullock claims he was assaulted and treated unreasonably at the police station when the police tried to remove his wedding ring from his hand before being placed in cells at the police station awaiting the breathalyzer test. He argues that this assault should lead to the exclusion of the words of his refusal to provide a breath sample.

The Facts

[2] On Sunday, April 23, 2017 the defendant was arrested by Constable Chelsey Nash of the Hamilton Police Service for having care or control of his motor vehicle while impaired by alcohol. He was arrested on Fifth Road facing south towards Green Mountain Road. Although I have not heard on the voir dire what the grounds were for the arrest, no issue is taken for the purpose of this argument that he was placed under lawful arrest. Further violations under section 8 of the Charter of Rights and Freedoms are pending resolution by the Court.

[3] He was transported in the back of a police cruiser to the Hamilton police central station in downtown Hamilton. He testified on the voir dire that, due to the route taken, several switchbacks were encountered which caused him to be jostled from side to side inside the police cruiser while he was handcuffed behind his back. When he arrived at the police station he was taken to the booking desk by Constable Nash. He had been previously searched by her incidental to his arrest for weapons and any evidence, before being placed in the police cruiser for transportation. No weapons or evidence were found in this initial search. While at the booking desk a conflict arose when the police sought to have him remove all his jewelry.

[4] Initially he resisted removing his jewelry which consisted of his wedding ring and a watch. With further urging he placed his hands on the booking desk and removed his watch but refused to remove his ring. He said that he had been wearing the ring for 30 years and that it didn't come off. Officer Nash asked him to make an effort to take it off and it appears on the video entered as Exhibit 1 that he makes some effort to do so without success. At about this time he tells one of the special constables "there will be conflict" in reference to the request to take off his ring. The special constable, not surprisingly, takes this as a potential threat and the officers present get closer to him in case the promised conflict arises. With three officers surrounding him a female officer behind the booking desk grabs his hand and attempts to take the ring off by force. This attempt occurs for a few seconds and when the applicant says "ow" she stops the attempt. At this stage, and it is somewhat unclear who, one of the officers tells him that he can keep the ring on. Shortly after this he is taken to the breath room and refuses to provide a breath sample into the approved instrument when it is presented to him. He tells the presenting officer, who provides him with several opportunities, that he will not provide a sample because he was not drinking and he was not driving. At no time does he say that he will refuse to provide a sample because of his treatment in the attempt to take off his ring. He does make a reference to the officer who accused him of making a threat, saying that he is a hothead and will have a short career.

Can the Actus Reus, the Words and Conduct of the Refusal, be Excluded for a Violation of the Charter of Rights and Freedoms?

[5] I raised with the parties the preliminary issue of whether the actus reus of an offence, in this case the words and conduct surrounding the refusal to provide a breath sample, can be excluded under section 24(2) of the Charter of Rights and Freedoms.

[6] In Regina v. Soomal, (2014) O.J. # 2160 (Ontario Court of Justice), Justice Stribopoulos noted that the Supreme Court of Canada had excluded the words of a refusal for a violation of section 10(b) of the Charter in Cobham v. The Queen (1994), 92 C.C.C. (3d) 333 (S.C.C.). He decided that the older case of R. v. Hanneson (1989), 49 C.C.C. (3d) 467 (O.C.A.) did not apply to the exclusion of the words of a refusal in a breathalyzer case:

As a result, I do not believe the Court of Appeal in Hanneson intended for its decision to be determinative in a case like this one, where the violation of a Charter right precedes the refusal to provide a breath sample in response to a demand under subsection 254(3)(a) (i.e. an approved instrument demand). I come to this conclusion for two reasons: first, the Court did not include the refusal to provide a breath sample in the list of offences it enumerated to illustrate the principle it recognized; and second, the circumstances contemplated by the Court of Appeal are distinguishable from a case like this one, where a defendant could potentially have a reasonable excuse for not providing a breath sample. As a result, I have concluded that the holding in Hanneson does not reach the circumstances of this particular case.

[7] I find that I am bound by the decisions of Regina v. Bleta (2012) O.J. # 944 (S.C.J.) and Regina v. Gill, (2015) O.J. # 6787 (S.C.J.). I adopt the reasoning of Justice Bourque in this regard in Regina v. Chi, (2014) O.J. # 6537 (O.C.J.), where he was presented with a similar argument concerning a violation of section 10(b) of the Charter:

Based upon my review of the court of appeal decisions, it would appear that the most recent pronouncement on the point (R. v. Rivera, supra) is as follows:

[102] In Hanneson, at pp. 471-77, this court reaffirmed that where the statement of an accused forms part of the actus reus of the offence, the voluntariness rule is inapplicable. And, most recently, this court in Ha, at paras 6-8 applied Hanneson, and held at para 8 that "the rationale in Hanneson applies equally here where there was a s. 9 breach as well as breaches of s. 10 of the Charter.

[97] I have reviewed the recent decision of Stribopoulos J. in Soomal. He believes that the older S.C.C. decision in R. v. Cobham, speaks to this issue and did not refer to Rivera.

[98] In my opinion, for R. v. Rivera not to apply, the Court of Appeal would have to make an exception to the general principle. It may be appropriate for them to do so in cases of a refusal of a breath demand, but as they have not done so, I don't think that I can ignore the principle. As I have not found a breach it is not necessary that I reach a determination in this case.

[8] When presented in a summary conviction appeal case with a court following the reasoning in Soomal, supra Justice Hill found at paragraph 35:

The court reached this conclusion despite the trial judge's apparent recognition (at paras. 124-126) that Soomal was inconsistent with the approach in R. v. Bleta (2012), 2012 ONSC 1235, 285 C.C.C. (3d) 261 (Ont. S.C.J.). In my view, Bleta was directly relevant and, as a summary conviction appeal, was binding on the trial judge: R. v. Smith (1988), 44 C.C.C. (3d) 385 (Ont. H.C.), at pp. 487-496 [R. v. Seecharran (2016) O.J. # 6395 (S.C.J.)]

As I am bound by the decisions set out above I deny the applicant's motion for exclusion of the words of the refusal for a violation of section 7 of the Charter of Rights and Freedoms. The words of the refusal in the case at bar are the actus reus of the offence and there is nothing to distinguish these facts from those in the binding decisions that hold that the actus reus cannot be excluded by a Charter application, as to do so would insulate the applicant against liability for a subsequent criminal act.

Alternative Analysis

[9] If I am wrong in this analysis I would have found that the assault complained of was not a violation of section 7 of the Charter. In my view the attempt to remove the applicant's wedding ring was not reasonably justified and therefore was an assault, a non-consensual touching of the applicant. Although the request to remove the ring was authorized by law, as contemplated by section 25 of the Criminal Code of Canada, it was unreasonable in the circumstances. The true justification for asking him to remove his wedding ring was to ensure the protection of his valuables and to insulate the police force from any liability should he later claim that it was taken or lost while he was in police custody.

[10] I find that a wedding ring is not a weapon, although the request to remove jewelry was authorized by law because the safekeeping of valuables of a person arrested is part of the administration and enforcement of the law. It is offensive to view a wedding ring, which is a symbol of the recognition of the vow and sanctity of marriage, as a weapon. It is not surprising that the applicant did not want to remove his wedding ring because it had meaning for him and because he had not taken it off for 30 years, and it would not come off without the assistance of a jeweller or some other extraordinary effort. The request for him to remove it was reasonable, but it was not reasonable to use force to try to remove it when he said it could not be removed.

[11] However, the use of force was minimal and momentary as the officer ceased her attempt to remove the ring as soon as the applicant showed it was painful by saying, "ow". The Supreme Court of Canada in Regina v. Stillman, [1997] S.C.J #34 (S.C.C.), found that taking hair samples and dental impressions was a violation of section 7. They found that forcefully plucking the appellant's scalp hair and making him pull out his own pubic hair along with forcing a plasticine mould into his mouth in order to obtain dental impressions for two hours was a violation of the appellant's right to security of the person promised by section 7 of the Charter. However they recognized that not every assault, however minor, will be a violation of section 7. This qualification was expressed at paragraph 92 of the decision:

In my view, police actions taken without consent or authority which intrude upon an individual's body in more than a minimal fashion violate s. 7 of the Charter in a manner that would as a general rule tend to affect the fairness of the trial. (my emphasis)

In Stillman the seizure was highly intrusive and was combined with other violations of his Charter rights leading to exclusion under the now defunct Collins test under section 24(2). Here the actions were momentary and affected the applicant in a minimal fashion. It was nothing more than a momentary discomfort and cannot be equated with the force in Stillman.

[12] Given my finding that this was a minimal use of force causing momentary discomfort it follows that on the first prong of the Grant analysis I would have found that it was not a serious Charter breach.

[13] The impact of the Charter violation on the applicant's Charter protected interests would also militate in favour of the admission of the words of the refusal. The refusal was not strongly causally linked to the alleged violation of section 7, namely the unwarranted attempt to take the applicant's wedding ring. Exhibit 2, the breath room video, demonstrates that the applicant refused the test not because the police tried to take his wedding ring but because he said he had not been drinking or driving. At no point did he indicate that he was refusing to take the test because of the momentary mistreatment by the police. Although he testified on the voir dire that it was part of the reason he refused I reject his evidence on this point and find that his professed reason for refusing at the time he was presented with the approved instrument is more telling.

[14] Society has a significant interest in the adjudication of drinking and driving cases on their merits. The evidence is extremely important to the prosecution's case as the words of the refusal are the actus reus of the offence, without their admission the charge would fail. The more crucial the evidence is, the more serious or significant the breach must be for exclusion to occur.

[15] For these reasons I would have admitted the evidence under section 24(2) as all three Grant factors strongly favour this result.

Released: February 11, 2018

Justice Anthony F. Leitch