Ontario Court of Justice

Date: April 18, 2018 Central West Region Brampton, Ontario

Between:

HER MAJESTY THE QUEEN

-and-

ROMEL MAHIPAUL

Reasons for Judgment

Duncan J.

Facts

[1] The defendant is charged with exceed 80, offence date May 12, 2017.

[2] The defendant, age 23, lived with his parents and brother in a house in Brampton. On the evening of May 12 an argument erupted between the defendant and his mother. The defendant, upset, packed up his belongings and left the house. He was last seen down the street, travelling on foot. The parents called the police concerned that harm may come to him because he had been drinking and was "aggressive". On leaving he had said "This will end badly". The parents were advised to come to the police station and make a report.

[3] Once at the police station, Peel 22 Division, the mother used her cell phone surveillance app to view the front of her house. She saw the defendant getting his car in their driveway boosted (it had sat idle for about a year) and the defendant then drive off in it. She thought he might be going to his girlfriend's place. (Conflict between the defendant and his mother about the girlfriend was the genesis of the earlier argument.) She and/or the police determined his likely route and a general dispatch was aired.

[4] The vehicle was soon spotted. It pulled into an Esso station and the defendant got out to pump gas. Two police cars pulled in front and behind and an officer from each, Matlashewski and Bertram, approached the defendant almost simultaneously. He was asked his name and whether he had been drinking. He admitted that he had. A pat down search was conducted. An ASD was summoned to the scene and a demand was read. A third officer, Bowan, arrived with the ASD between 7 and 10 minutes after it was requested and the investigation was turned over to him since the other two officers were supervising sergeants. Bowan placed the defendant in the back of his police car and spoke to the other two officers, presumably to get grounds. He then returned to the defendant, had him step out, explained how to blow in the ASD and then received a sample that registered a fail. The defendant was arrested and taken for breath tests that betrayed blood alcohol content of 180 mg%.

[5] There was a conflict in the evidence between the defendant and the police officers as to whether the defendant was handcuffed after the pat down search and before the ASD testing and arrest.

[6] The defendant was co-operative and polite during the breath testing. In the interval between tests the Qualified Technician told the defendant that he understood that his parents were or had been upstairs.

[7] Following the tests, at about 1:30, the defendant was put in cells. He was asked whether someone could be called to pick him up. He gave his girlfriend's contact information. The officer called but the girlfriend told him that she would not come and did not want the defendant to come to her place. This information was conveyed to the defendant. He did not request that anyone else be called.

[8] The mother testified that she and the father were at the station and were told that their son was in custody in the building. They asked to see him but were told that could not be done. They were quite willing to take him home if permitted. At around midnight they were told that the defendant would be held overnight. They went home. Between 1 and 2 am they said that they received a call from police telling them that the defendant would be going to court for a bail hearing in the morning.

[9] The defendant was released from the police station at around 6:30 am. He said that he took the bus home. However his mother said that she did not see him until later that day, in the evening, when she saw him at her mother's (the defendant's grandmother's) house in Brampton.

[10] The court documentation shows that the defendant was brought to court by means of a summons served on May 17. This is unusual in that the common form of release is a promise to appear and an undertaking given to the officer in charge. So he was neither held for a bail hearing nor apparently released on the usual form. In any event, this small mystery has no bearing on any issue in this case.

Over-Holding

[11] The police are entitled to hold post breath test subjects until they sober up: Sapusak. They are entitled to take notice of rates of alcohol elimination in calculating how long it will take before the detainee is below 80: Coulter. In this case with readings of 180 the defendant was fortunate to have been released when he was in that he was likely still over the legal limit.

[12] But the police must also consider alternatives to holding, specifically whether the detained person can be released to a responsible person: Price. In this case the police explored that option with the girlfriend. She was not willing. The defendant did not request that anyone else be called even though he knew that his parents might even be in the building. The defendant said that although he knew their number(s) he did not think to call them. I don't believe that. I think he was upset with his parents and didn't want to have anything to do with them that night. He had just moved out of the house to get away from them. His not going home in the morning when released is also telling. Undoubtedly the parents cared for him and would have wanted to have him released to them – but that is not to the point. The defendant did not want to go with them.

[13] One final point on this: The defendant said in examination in chief that since he was not given his cell phone the only number that he knew was that of his girlfriend. He later acknowledged that he also knew his parents' numbers. He didn't call them, as I have found above, because he was mad at them. As for calling someone else and the significance of not having his phone – in his evidence the defendant did not mention anyone else that he could have or would have called had he known the number or had his phone. While withholding a phone or access to phone numbers might have significance in a case where the detainee wants to reach a particular person or persons, I do not think it has significance on the facts of this case.

[14] In summary, I do not find any unlawful detention or over-holding here. The length of detention was commensurate with the defendant's condition. The only alternative suggested did not work out.

Charter Breaches on Detention and Arrest

[15] The defendant alleges four Charter infringements arising out of the circumstances surrounding his arrest:

1. Failure to provide 10(b) rights while waiting for the ASD
2. Unlawful pat down search
3. Unlawful handcuffing before arrest
4. Unlawful detention in placing the defendant in the back of the police car

[16] 10(b): The 10(b) right is suspended during this procedure unless the delay is long enough to permit a realistic opportunity to contact counsel. Acting sergeant Matlashewski said he called for the device at 1147 and it arrived at 1154. Cst. Bowan said that he heard the call for an ASD at 1144 and he was on scene at 1154. So the delay was 7-10 minutes – far too short to provide the necessary opportunity: Beattie. The argument that this somehow changes if the requesting officer does not know when the device will arrive was put to rest in R. v. Latour.

[17] Pat down search: A police officer is not entitled to conduct an officer safety search during an investigative detention as a matter of course. There must be something more that gives a specific concern that safety may be compromised, usually by possession of a weapon: Mann. In my view that something more was present here given the nature of the call. The parents were concerned that the defendant might harm himself, a concern that implies that he may be in possession of something with which to do that. His parting words were ominous. It is obvious that the standard for permitting minimally invasive pat downs for officer safety ought not to be high. In my view it was justified on the facts of this case.

[18] Handcuffing: As mentioned, the defendant said he was handcuffed almost at the outset of his interaction with the police and remained handcuffed until he was at the station. Despite the numerical weight of witnesses to the contrary, I accept the defendant's evidence on this point. I think he was being honest about this. It is true that he had had a lot to drink and for that reason might be honestly mistaken about the sequence of events – but I don't think he was mistaken on this point. His arrest was no doubt a memorable event in his life (not so much for the police officers) and his evidence seemed to me to be the clear and unequivocal product of a specific and accurate recollection. By contrast the officers on scene were not so clear. Sgt. Bertram eventually acknowledged that he couldn't say for sure whether or not the defendant had been handcuffed at that point. Matlashewski was more firm in his denial re the handcuffs but was uncertain and inconsistent with Bertram on another point, that is, which one of them called for the ASD. Constable Bowen, the arresting officer did not specifically say that he handcuffed the defendant.

[19] There are a number of cases dealing with handcuffing detainees in the roadside breath test situation. They have uniformly found it to be an infringement of sections 8 and 9 of the Charter: see R. v. Orde and cases cited therein at para 12. Also more recently: R. v. McGuffie.

[20] Placing defendant in police car: I do not think that the case of Aucoin stands for the proposition that placing a detainee in the back seat of a police car is per se unlawful or a Charter violation. This would particularly be so in the ASD demand situation where the officer is specifically authorized to require the detainee to accompany him for the purpose of conducting the test. The interior of a police car might reasonably be seen as an appropriate place for reasons of safety, warmth, quiet or other circumstance. In my view, Aucoin decides that a police officer cannot unilaterally expand his own powers of search by making an unnecessary and unreasonable decision as to where to place a detainee. In this case there is no evidence that placing the defendant in the police car involved any further search of his person. Accordingly, that placement did not infringe the Charter.

Section 24(2)

[21] The cases cited above paragraph 19 have found that handcuffing a detainee in this situation is a serious Charter infringement that tends to support the exclusion of eventual breath test results. It is a serious interference with liberty and dignity and tends to turn an investigative detention into a de facto arrest of one against whom there are not yet reasonable grounds of commission of an offence. In first recognizing a power of investigative detention the Supreme Court in Mann cautioned against such blurring and expansion of police powers: see Campbell.

[22] With respect to the impact on Charter protected rights, it might be argued that it was minimal – that in this case the only impact was to put the defendant in the same position that he inevitably would have been in about 15 minutes later. However, I think that argument overlooks the fact that the immediate impact on the defendant was, as mentioned, a significant loss of liberty and dignity. Viewed more generally, from a long-term perspective, tolerance of such a practice would have a significant detrimental impact on Charter rights of all detainees.

[23] The Crown refers to the recent Court of Appeal decision in Jennings for the proposition that the impact of obtaining breath samples even following a Charter breach is minimal. But I think Jennings is limited to cases where the breach is not serious and more importantly, where the breach only affects section 8 rights by reason of some deficiency or aberration in following the myriad legalities of the statutory breath testing regime.

[24] Plainly it is the Charter offending conduct that must be assessed under 24(2). That is rarely just the taking of breath samples itself, so the intrusiveness of that step cannot be the sole focus. Where there is other state conduct that is outside the direct ambit of the actual breath sample acquisition, the impact of that conduct must be assessed as well. In such a case the second Grant factor "should be approached from two perspectives": per Doherty J.A. in R. v. Orlandis-Habsburgo. To take an obvious and hopefully hypothetical example, if a breath test detainee was subjected to a severe beating by police on the way to breath testing, the non-intrusiveness of those tests would hardly serve as an answer to the question of their admissibility.

[25] Accordingly, I do not read Jennings as mandating a different result than that reached in the decisions cited above paragraph 19. Like those courts, I have reached the conclusion that the balance of the three Grant factors in this case favours exclusion.

[26] The breath sample results are excluded. The charge is dismissed.

April 18, 2018

B Duncan J.

D Lent for the defendant

D Pyper for the Crown