Court File and Parties

Ontario Court of Justice

Date: 2018-05-10

Court File No.: Central East - Newmarket 4911-998-17-01774

Between:

Her Majesty the Queen

— and —

Nilesh Patel

Before: Justice P.N. Bourque

Reasons for Judgment

Released on May 10, 2018

Counsel:

• B. McCallion, for the Crown
• K. Anders, for the Defendant

Overview

[1] The defendant drove his car into a ditch on a country road in York Region. He and his friend tried to get it out of the ditch to no avail. It was snowing, dark and cold. Civilian drivers concerned about sobriety of the driver called the police who arrived. The result is a charge of failure to take the ASD test.

Crown Evidence

Patrick Gros

[2] …is a York Regional Police officer and was dispatched to the scene at 03:22.

[3] The officer saw a vehicle in the ditch with two men who had obviously (seeing the disturbed snow and other articles around the wheels of the car) been trying to release the vehicle. The defendant came up to the officer and said he had been driving and had simply spun out. The officer noted that the other person seemed obviously intoxicated. After some conversation, the officer said he could smell an odour of alcohol on the defendant's breath. The defendant denied drinking. The defendant kept saying that everything was okay and that CAA was on the way.

[4] The officer asks him to have a seat in his cruiser and the defendant does so. The officer says the door is open. He begins a conversation which the audio portion is captured on the Video and Audio system in the officer's car.

[5] The video is played as an exhibit. There is a conversation where the officer, eventually at 03:34, forms a reasonable suspicion and makes an ASD demand.

[6] The officer brings out the instrument, does a test and a demonstration blow and asks the defendant to blow into the device. The defendant is arguing with the officer and wants to talk about his car in the ditch. The officer asks several times. The officer tells him more than once the consequences of a failure to blow. The defendant on at least three occasions refuses to blow. The officer gives him a last chance but the defendant still refuses in clear language. The officer arrests the defendant at 03:45.

[7] At this point, the officer takes him out of the car (it is actually another officer's car), searches, handcuffs him, puts him in the rear of the car and closes the door. He reads the caution and the rights to counsel. The defendant indicates he wishes to speak to counsel. The officer indicates that he will be releasing him and he can talk to his lawyer any time after the release.

[8] The officer then leaves to go to his own car and do all the necessary paperwork to do a roadside release including a promise to appear, a ADLS suspension, a car seizure and the ordering of a tow truck.

[9] The officer indicates that he cuffed the defendant to the rear but double cuffed him so the cuffs don't get any tighter.

[10] The defendant is then in the back of the other officer's cruiser waiting to be released. The defendant sometimes talks to the officer, sometimes questioning his arrest and the other officer responds. The defendant is eventually released at approximately 04:37.

Defence Evidence

Aaron Combdon

[11] …is a York Regional Police officer of some 4 years' experience. He came to the scene about the same time as Gros (02:35) but Gros was dealing with the defendant and he was dealing with the passenger of the car whom he described as intoxicated and a danger to go out onto the road. He believes that when Gros was interviewing the defendant, he was in the back seat of his cruiser and Gros was outside.

[12] He recalls the defendant being arrested at 03:47 and the defendant was handcuffed to the rear. The officer confirms no threatening conduct from the defendant.

[13] The defendant was going to be released when the paperwork was done, the tow complete and they were going to give the defendant and his passenger a ride home.

[14] The audio (Exhibit 1) was played of the interaction between the defendant and this officer while he was in the back seat of this officer's car. The audio went from 04:00:37.

[15] There are periods of time when nothing is being said.

[16] At 04:04 the defendant complains about why he is being charged and asked many times why he is charged.

[17] At 04:05, the defendant begins to say that it was "his buddy" who drove the car in the ditch. There ensues a back and forth conversation and the officer is insisting that he told the police at the beginning that it was he who was driving. The officer asks the defendant if he is "obstructing". The defendant is still asking why he is charged and why the car is being impounded. He is asking why his friend cannot drive the car home.

[18] The defendant states at one point that his buddy was going to get a truck and a rope to pull the car out of the ditch.

[19] The defendant then makes the statement "you are trying to ruin my life".

[20] At no time in the discussion does the defendant sound to be in any other than a stressful situation. He does not sound to be in pain or discomfort.

[21] At 04:12, he states: "Can you get me out of these cuffs?". He goes on to state that he was not driving the car and the officer tells him that he said he was driving. He also says "my buddy has not been driving".

[22] At 04:16, he says "Please get me out of these cuffs".

[23] He makes this request several times in the course of speaking to the officer and saying several times he was not driving the car. At one point in this conversation, the officer in response to a request to take off the cuffs that "No, it is going to take longer now". The officer denied that he was actually going to leave on the cuffs longer than necessary and in any event, he was not saying that to punish the defendant for denying he was the driver.

[24] At 04:20, the officer re-adjusts the cuffs. The officer stated that he was loosening them. There is no word from the defendant for quite some time.

[25] At 04:28, the defendant says that the cuffs feel tighter. The officer says that he will be released in a minute.

[26] At 04:27, the defendant states he has no blood circulation in his right arm and then "You guys are arresting me for no reason".

[27] The defendant does not comment further on the cuff situation but complains and asks "Why are you doing this man?" He asks for his wallet and asks to go into his car.

[28] At 4:35, the defendant complains that the cuffs are "super tight".

[29] At 4:37, the cuffs are removed, the defendant is given his paperwork and he is driven by the officer to a local McDonald's.

[30] The officer indicated in re-examination that it is common for people to complain about the cuffs. He did not find the actions of this defendant to be unusual. He believed that when he loosened the cuffs, he loosened them as far as he could. He denies categorically that he attempted to inflict any pain upon this defendant.

[31] With regard to the above evidence, I considered it only for the Charter application.

[32] The defence called evidence on the Charter applications.

Nilesh Patel

[33] …is 26 years of age and works as an assistant to his father who is a pharmacist. He also works part time as a landscaper in the summer. He says that he was at Boston Pizza and had 4, 5 or 6 drinks. He was driving home and slid into the ditch. He stated he refused to take the ASD but wishes he had done so.

[34] The defendant indicated that when the police came, they "asked him to sit in the police car and he did". He agreed that during the process of the discussion and the refusal to take the breath test, he was in the back seat, the door was open and the officer was speaking to him from outside the vehicle.

[35] The defendant advised that on arrest at 03:45, he was handcuffed to the rear, placed in the back seat of the cruiser and the door was closed.

[36] He stated that he started to feel a loss of sensation in his wrists and he was having difficulty supporting himself up as the rear of the vehicle is small. He agreed that he did not start to complain until about 20 minutes after being in the rear of the cruiser.

[37] He said that he complained many times about the pain and loss of sensation. He stated that when the officer took him out of the cruiser and adjusted the cuffs, they were "at least no looser" than they had been. He confirms his complaints after that.

[38] He indicated that he felt pain that evening after his release and then the next morning. He had bruises on his right wrist. He also stated that the discomfort lasted for 2 or 3 weeks and he sometimes feels some pain even now when he is lifting weights. He did not seek any medical attention and there is no evidence that he took any analgesics to deal with the pain.

[39] In cross-examination, he admitted his criminal record which was a drinking and driving offence in 2010, and a possession of a banned substance in 2013.

Mina Patel

[40] …is the mother of the defendant and confirms the bruising on the wrists of the defendant and the pain and discomfort felt by the defendant over the following two weeks.

Analysis

[41] There is no argument that the defendant refused to take the ASD.

Was the Demand Valid?

[42] The defendant argued by way of an application for a directed verdict that the demand was not valid as the officer did not say that the defendant was driving, was in care and control, or had been operating the vehicle within the past three hours. The matter in my opinion can be decided in two ways.

[43] Firstly, the Ontario Court of Appeal decision in R. v. MacPherson indicates that the validity of the ASD demand does not require that the officer have a reasonable suspicion about any of these things other than the suspicion that there is alcohol in the defendant's body.

[44] Secondly, even if the change in language in s. 254(2) in 2008 makes the suspicion also go to the driving or care and control within the past 3 hours, then the officer need not articulate the issue as long as there is surrounding evidence known to the officer that can infer the driving or care and control. This approach was taken in R. v. Stennett.

[45] In our case, the defendant admitted to being the one who drove the vehicle into the ditch and there was a vehicle by the road with the defendant and another person actively trying to extract it on a very cold night. In addition, the mere fact that they were actively trying to move it and were seeking the assistance of a tow truck (CAA was on the way) would lead any officer to the reasonable suspicion of recent driving and indeed that the defendant was continuing with care and control of the automobile.

[46] The demand was valid, and the defendant was under a legal compulsion to comply.

[47] As a further matter, I also believe that while before the amendments, the law was that the Crown had to prove at trial the active care and control, or driving within the previous 3 hours, I think that this is no longer the case. As stated in paragraph 14 of R. v. Xhelili:

…In the past, the Crown was required to prove that the person to whom the demand was made was, in fact, operating or in care or control of the vehicle in order for the demand to be legal: see R. v. MacPherson, [2000] O.J. № 4777 (C.A.); R. v. Swietorzecki, [1995] O.J. № 816 (C.A.). However, on the current wording of section 254(2), I am satisfied that this is no longer an element of the offence: see R. v. Taraschuk, [1975] S.C.J. № 122; R. v. Khald, [2010] O.J. № 3372 (C.J.); R. v. Hutchinson, [2010] A.J. № 4837 (Prov.Ct.). It is the reasonableness of the officer's suspicion as to care or control, based upon the cumulative effect of the circumstances as known to him at the time of the demand, which is determinative.

[48] In other words, having ruled that the demand was a valid one, I find that the Crown need not prove beyond a reasonable doubt whether the defendant actually had care and control or had driven the vehicle within the past three hours. I believe that the defendant did not contest this view.

Were the Defendant's 10(b) Rights Infringed?

[49] The defence asserts, that by virtue of R. v. Suberu, the officer should have made some accommodation to have the defendant contact his lawyer or duty counsel, from the roadside, even though the investigation was complete and the officer was taking steps to release the defendant from the roadside. The defendant argues that even if there were some practical difficulties (where was the private conversation to take place, in a police cruiser with the video/audio running, out in the cold night, or in the defendant's car), something could have been done and not being done for the balance of the time he was in custody, there was a breach of his rights.

[50] The defence points to the fact that the rights to counsel (given to all accused persons) contains the question at the end "Do you wish to call duty counsel now?" The officer candidly admitted that he wished the rights to counsel were amended in situations where a person is being released, but agreed that there was a contradiction here.

[51] It may be analogous to the situation where a driver is being taken back to the station for breath tests. The right to consult with counsel is almost always at the station, not in the police car at the roadside. There is always some delay even when the defendant asks for counsel. That is also a situation where there will be a further investigation (breath tests).

[52] Here the investigation was complete and the only delay was the time to finish the other tasks (Appearance notice, ADSL suspension, and seizure of the motor vehicle).

[53] I am concerned that the delay was some 40 to 50 minutes over and above the 10 to 20 minutes that would be reasonable in the normal case to complete the paperwork. Officer Combdon believed that the delay in processing was caused by the fact that to remove the defendant's car from the ditch (to be seized) the tow truck had to block the road for a short period of time. The officers felt the need to be there to stop oncoming traffic which was in the dark. Even so, in these circumstances, I think with this delay, the officers should have given the defendant the opportunity to consult with counsel. In that sense there is a breach.

[54] However, on review of the Grant factors, I do not think that there would be any relief which could be provided. As the investigation was complete, there was little effect upon the Charter-protected interests of the defendant. The breach was not serious in that, again, the officer was simply releasing the defendant at the roadside and was not transporting him to the detachment for further investigative steps or to have him under arrest for a prolonged period of time. Finally, there is a strong societal interest in dealing with this matter on the merits.

[55] In any event, other than excluding any statements made by the defendant to the police after the arrest (which affect his culpability in any way), there would appear to be no real relief. I would certainly disabuse myself of any statements made by the defendant in those circumstances which would affect his liability in this matter. The Crown did not ask me to rely on any such statements.

[56] I agree, however, that even if I would not be disposed to grant any relief for this breach, I could consider it as an aggravating factor if I were to find a breach of his section 7 or 9 rights.

Was the Defendant's Section 7 and 9 Charter Rights Infringed?

[57] The defendant spent the period from 03:47 to 04:48 (one hour and one minute), after his arrest for an ASD refusal, in the back seat of a police cruiser, with his hands handcuffed behind him. I have already implicitly found that this would be some 40 to 50 minutes longer than it would have been if the issue of moving the car from the ditch was not here.

[58] I have reviewed the evidence of the audio of the entire period (Exhibit 1), the evidence of both police officers and the viva voce evidence of the defendant.

[59] I will not repeat it all here but I point out the following considerations:

• (i) the defendant was indeed under a valid arrest;
• (ii) the officers indicated, as was the case, that he would be released after the processing was complete;
• (iii) the processing included the seizure of the defendant's car, and the subsequent tow which led to an issue of continuing officer involvement;
• (iv) the placing of the defendant in the back of the car and the handcuffing behind was a matter of police procedure;
• (v) the defendant was upset about many things principally, the fact that he had been charged and arrested at all, and the discomfort that he was feeling.

[60] I do not find that the officers intentionally attempted to cause him pain and suffering. I do not find that the officer actually increased the pressure on the hand cuffs. I accept that this may not have alleviated any of the defendant's discomfort.

[61] The defence points to the comments of the officer when he said "You have made it longer" as some sort of indication of an intentional infliction of pain. I do not accept it other than a reflex reaction to the arguments from the defendant about his denial of driving. In any event, I do not find that the officer in any way intentionally extended the period of time that the defendant had to remain handcuffed in custody.

[62] I find that the officers could have been more considerate of the defendant's needs and could have taken some further steps to relieve his discomfort. I find that the length of time that the defendant spent in the cruiser was unusually long, and was dictated by the issue of the towing of the car. While I understand why the officers felt the need to be there throughout, other steps could have been taken, such as getting some back up officers to attend to see to the task of directing traffic around the tow truck.

[63] I believe that there was nothing unlawful or in breach of any of his Charter rights in the placing of him, handcuffed into the back of the police cruiser. It was stated to be normal procedure. To say that literally thousands of citizens suffer the same fate does not in and of itself absolve any officer in this case, but it does inform the attitude of the attending officers. To them this was a normal procedure and while there is certain discomfort, it has not been ruled to be offensive in and of itself to the defendant's Charter-protected interests.

[64] I find that the defendant was suffering discomfort. I do not find any injury beyond temporary pain (lasting for a fortnight or so) and some bruises. I do not find that all of his distress, while expressed as relating to the handcuffs, was solely the handcuffs. He was terribly upset about being arrested and charged. His attempts in his discussions with both officers to "walk back" from his admission of driving is evidence of his desperation. As per his evidence in court, he was actually lying to the officers during these discussions.

[65] I have reviewed the decision of R. v. Bennett, 2009 ONCJ 95. I note that where the defendant was left alone in a police cruiser waiting for the sally port to open up, handcuffed for about one hour, and eventually suffering similar injuries as was experienced by this defendant, the court ruled that (where there were other violations as well) "this was one of the clearest of cases where a stay is appropriate". I note the differences in these two cases, especially the fact that in our case, the defendant was not a stranger to the criminal investigative process.

[66] The first thing to be decided is whether I find that there is a section 7 or section 9 infringement. I do not find a section 9 infringement because I do not find that there was anything capricious or otherwise with the amount of time that he was in custody. The factor of the moving of the car clearly led to the defendant being in custody longer than normal. It is not enough just to say there was a way it could have been dealt with. In the circumstances of this case, I do not find that the officers waiting to have the matter dealt with as it involved a dangerous situation on the road, was unreasonable.

[67] With regard to the section 7 breach, the issue becomes the handcuffs and the length of time. Having made the findings that I have above, while I believe that other steps could have been taken, I do not find that his section 7 rights have been infringed. As stated in R. v. Donnelly, 2016 ONCA 988, (par 106) "…it is not every qualification or compromise of a person's security that comes within the reach of s. 7 of the Charter. The qualification or compromise must be significant enough to warrant constitutional protection. To suggest that any qualification or compromise of security of the person engages s. 7 risks trivializing the protections of the Charter".

[68] Even if I were to find a breach of the section 7 Charter rights, would that breach and the addition of the 10b breach, lead me to decide that this was the "clearest of cases" for which a stay is the appropriate remedy. I would have to say that even if I made such findings, I do not believe that this is the "clearest of cases" to grant a stay, notwithstanding the very able argument put to me by counsel.

Conclusion

[69] Having rejected the application for a stay, I find the defendant guilty of the offence of a refusal to provide a sample of his breath as per the requirements of section 254(5) C.C.

Released: May 10, 2018

Signed: "Justice P.N. Bourque"