Court File and Parties

Ontario Court of Justice

Date: 2018-05-04

Court File No.: Brampton 3111 998 17 9451

Between:

Her Majesty the Queen

— and —

Dathan MacMillan

Before: Justice G.P. Renwick

Heard on: 03 May 2018

Reasons for Judgment released on: 04 May 2018

Counsel

A. Mountjoy — counsel for the Crown

M. Elajami — counsel for the defendant

RENWICK J.:

INTRODUCTION

[1] Dathan MacMillan is charged with a single count of operating his motor vehicle with an excess blood alcohol concentration.

[2] The parties agreed at the outset of the trial that the defendant's Charter application for the exclusion of his breath testing results could proceed concurrently, alongside the evidence taken on the trial proper.

[3] The prosecution called three police witnesses: the initial investigator (Constable Wilmot), the arresting officer (Constable Zara), and the breath technician (Constable French). The defendant relied solely upon the evidence adduced by the prosecution to advance the Charter application and no additional evidence was led by the applicant, nor did the defendant lead any evidence on the trial proper.

[4] After considerable argument, the defendant abandoned that part of his application which alleged a s. 8 Charter violation. The defendant argued that alleged violations of ss. 9, 10(a) and 10(b) of the Charter mandated the relief sought.

[5] During the argument, the prosecution conceded that the defendant's s. 10(b) Charter right had been violated. Also, during submissions, I indicated that I was dismissing the application in respect of the alleged ss. 9 and 10(a) Charter breaches and I only required the Crown to consider the s. 24(2) analysis in relation to the conceded breach.

[6] In these reasons, I will provide the route to my earlier conclusions and my decision on the remaining aspects of the Charter application.

DISCUSSION

Section 9 Charter Violation

[7] The defendant alleges a s. 9 Charter violation because the police did not have an approved screening device ("ASD") at the scene of the initial detention of the defendant and it took approximately 28 minutes for an ASD to be brought to the defendant's location. It is the defendant's position that what began as a lawful detention became arbitrary due to the length of the detention. The defendant produced no jurisprudence to support this argument.

[8] I reject the defendant's submission for the following reasons:

i. The defendant accepts that the initial detention of the defendant to investigate whether he was the registered owner of the Jeep vehicle he drove, for whom an arrest warrant in Alberta existed, was a valid reason to stop him to investigate;

ii. The unchallenged and uncontradicted evidence, which I accept, is that it took 28 minutes to obtain an ASD. Other than rush-hour traffic, there was no additional reason for the delay in retrieving the nearest available ASD;

iii. The defendant's sole argument was that the length of the detention made that detention arbitrary. There was no suggestion that the police prolonged the detention for any other or improper purpose;

iv. The reason for the continued detention of the defendant was not capricious or without explanation. The police were awaiting the retrieval of an ASD to investigate the defendant for a possible criminal offence where police observed that he had red-rimmed and watery eyes and the odour of alcohol on his breath while operating a motor vehicle. As well, the defendant had already admitted having consumed "a lot" of alcohol in the preceding 24 hours; and

v. The detention did not become arbitrary solely because it endured beyond what the officer expected would be a brief detention to retrieve an ASD. Other than the simple fact that a longer detention is more inconvenient than a shorter one, the defendant's jeopardy did not change during this delay. There was no additional prejudice to him on the basis of the length of time he waited. Specifically, while awaiting the arrival of the ASD the police discontinued their investigation, the defendant was permitted to freely move about outside of his vehicle, the sole officer who remained on the scene cautioned the defendant from speaking to minimize any risk that he might further incriminate himself, and the officer removed himself from the defendant's immediate presence by returning to his police car.

In all of the circumstances, I do not find on a balance of probabilities that the defendant's lawful detention became arbitrary within the meaning of s. 9 of the Charter.

Section 10(a) Charter Violation

[9] The defendant also alleged that his rights were violated because he was told of the reason for the initial traffic stop, but he was not promptly advised when the police began to suspect his involvement in a possible drink-driving offence.

[10] Respectfully, this submission also fails. The evidence of the police was clear. Constable Wilmot specifically testified in cross-examination that he explained that he wanted the defendant to leave his vehicle to determine whether the smell of alcohol was coming from the defendant or the car. The testimony of Constable Wilmot was not seriously contested, nor was it contradicted by any other evidence. The applicant did not testify on the application. Simply put, the applicant cannot point to any evidence upon which I could base an adverse credibility finding regarding this officer. In that regard, I point out that there is nothing inherently unbelievable in the evidence of Constable Wilmot, and I accept his evidence on this point as reliable and accurate. This evidence, coupled with the question about the consumption of alcohol and the ASD demand, which was made within three minutes of the initial traffic stop, would have made it abundantly clear to the defendant that the police were also detaining him to learn whether or not he was committing a drink-driving offence.

[11] This is all the law requires:

Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy.

Assumed Constitutional Violations and Section 24(2) of the Charter

[12] Although, strictly speaking it is not necessary to consider the defendant's unsuccessful Charter arguments, for the reasons I express below I would not exclude the breath sample results even had I found that the defendant's ss. 9 and 10(a) Charter rights had also been violated. In this part I will consider the exclusionary rule following the three stage analysis formulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32.

[13] In the case of a s. 9 breach, there was nothing about the police misconduct that compounded the defendant's jeopardy or his loss of liberty beyond what already existed as a result of the s. 10(b) infringement. And although a series of Charter violations is usually worse than any lesser number of trespasses, this is not necessarily so in the defendant's case. Here the police demonstrated a pronounced sensitivity toward the defendant's liberties during the impugned investigation by cautioning the defendant not to say anything incriminating, by refraining from actively eliciting information from him, by minimally restricting the defendant's liberty beyond directing him to wait outside his vehicle, and by maintaining a somewhat detached detention.

[14] If I am wrong in finding that there was no s. 9 Charter violation, the seriousness is mitigated because the detention began lawfully. The police were investigating whether the defendant was arrestable for an offence alleged in another jurisdiction. As well, the detention only became arbitrary because it endured for an unacceptable period of several minutes. In fact, accepting that Constable Zara became aware that the defendant had used a mouthwash (which is assumed to contain alcohol) five minutes before the traffic stop and 8 minutes before the ASD demand, and the officer was aware that he would have had to wait an additional 7 minutes before commencing the breath screening, even if he had possession of the device when he made the demand, the detention only became arbitrary for 21 minutes (from 5:37 pm to 5:58 pm).

[15] Again, the detention was not found to be arbitrary on the basis of any improper police motive or conduct beyond the suspension of the defendant's liberty as a result of heavy traffic. It was not contended that every police officer should have an ASD in their possession, so there will inevitably be delays occasioned to retrieve these devices from other officers or the police station. It is only where there is an unacceptable delay attributable to police misconduct where the seriousness of the Charter offending behaviour will require exclusion of the evidence.

[16] The impact of the police behaviour upon the Charter protected rights of the defendant was the same regardless of the number of constitutional violations established: the defendant temporarily lost his right to be left alone by the state, his movements were hindered, and he remained under continual state surveillance without access to information about his constitutional rights or a mechanism to exercise those rights. The defendant's loss of liberty was reduced to the bare minimum because he had access to a phone he possessed on his person, he was entitled to walk around, his personal space and bodily integrity were respected, and his legal jeopardy never increased.

[17] With a proven s. 10(a) Charter violation, the analysis changes only minimally. Bearing in mind that a lawful reason was given for the initial detention and the police did advise the defendant why they wanted him to leave his car and why he was being made to await the arrival of an ASD, there is little added to the seriousness of the situation by piling a s. 10(a) breach on top of purported ss. 9 and 10(b) infringements.

[18] Moreover, a s. 10(a) Charter violation is more technical than apparent in the actual circumstances of this case. Once his identity was established, the defendant was arrestable for an outstanding warrant. The police learned that the defendant was the registered owner of the vehicle he drove and there was an arrest warrant in effect for him. The defendant took no issue with this evidence and I accept it without hesitation. This reason alone provided the police with grounds to arrest the defendant and to detain him to further learn if he would be held for another police service and otherwise dealt with according to law. Both officers testified that although they detected the odour of alcohol very soon after each had exposure to the defendant in his vehicle, they did not abandon investigating the defendant for a possible outstanding arrest warrant. This purpose remained throughout. The excess blood alcohol allegation was merely a detour involving a much less intrusive loss of liberty along the way.

[19] In this sense, both the seriousness of the constitutional missteps and their impact upon the defendant is greatly reduced in the particular circumstances of this case. They are also greatly mitigated by the attempts made by Constable Zara noted above, to respect the defendant's Charter rights. If the police missed the mark, they did so by very little.

[20] I find that the third branch of the Grant inquiry is neutral in the case of multiple Charter violations in this case. Although breath samples are minimally intrusive (see R. v. Jennings, 2018 ONCA 260 at paras. 30-31), and a trial on the merits generally favours inclusion of this type of evidence, where the police have encroached on several constitutionally protected interests, the community may well expect that the court might exclude the fruits of this investigation in order to disassociate itself from state misconduct. In order to protect the long-term integrity of the justice system, exclusion of evidence may be seen by the public as equally important as a trial on the merits.

Section 10(b) Violation and Section 24(2) of the Charter

[21] The prosecutor conceded that s. 10(b) of the Charter was infringed when Constable Zara continued the detention of the defendant in the absence of the ASD and failed to give effect to the defendant's right to counsel.

[22] This breach of a fundamental right is serious. Section 10(b) is one of the most foundational of all Charter rights because it seeks to protect the individual from self-incrimination and participation in one's own investigation. I have considered the effect of this violation, the technical nature of this infringement, the good-faith efforts of the police, the police failure to fully appreciate the scope of the s. 10(b) obligation, and the context of this investigation in order to assess the seriousness of this breach.

[23] Although all breaches of s. 10(b) of the Charter are serious, in this case, the misconduct is on the lower end of seriousness: Courts have recognized a need to suspend the exercise of one's right to counsel in drink-driving investigations given the ordinarily brief nature of the investigation, the importance of detecting drunk drivers (both those who are impaired in their ability to drive and those with an excessive blood alcohol concentration), and the general lack of a realistic opportunity to consult counsel before a breath screening can take place. In this situation, the expected delay was exceeded for reasons beyond the officers' control (bad traffic), and even if the officer had been cognizant of his obligation to afford the right to counsel, there was no immediately available room within which to afford the defendant a private area to exercise this right.

i. I find that Constable Zara was knowledgeable about the Charter; his decision not to transport the defendant to the police station in order to perform the ASD screening and his reasoning for same was sound. Constable Zara demonstrated a remarkable appreciation for the defendant's liberty rights;

ii. I find that Constable Zara intended to respect the defendant's Charter rights, as evidenced by his decision to caution the defendant from providing inculpatory admissions, by holding off any further investigations during the ASD retrieval period, and by maintaining the least amount of restriction of liberty possible;

iii. The period of time within which the defendant's Charter right was breached was not excessive. Factoring in the time the police would have been required to wait given the defendant's admission of mouth alcohol, the abrogation of the right to counsel occurred over a 21 minute period;

iv. But for the rush hour traffic, the delay occasioned by the retrieval of the ASD would have been much less and likely before there was any realistic opportunity to exercise the right to counsel; and

v. The breach occurred in the context of a highly regulated public activity and the defendant is presumed to know as a motorist that he must comply with a breath demand. As well, the defendant's bodily integrity was not at risk and the defendant's liberty was only minimally disturbed.

In these circumstances, although serious, the breach does not favour exclusion.

[24] The impact of the breach was not insignificant. The defendant was alone against the state. He was being held by the police, unknown to anyone expecting him, presumably against his will, and impeded from continuing on his way for an additional 21 minutes, without being told of his right and the means to access legal advice. However, the effect of this Charter breach is somewhat mitigated because although the police failed to offer the informational and implementational components of the right to counsel, the officer discontinued eliciting any further information from the defendant or advancing the excess blood alcohol investigation and he cautioned the defendant to prevent him from unwittingly incriminating himself. This second Grant factor, like the first, does not clearly point toward exclusion of the evidence in all of the circumstances.

[25] In the end, when I consider the good faith efforts of Constable Zara, the reason for the Charter violation (bad traffic prevented the ASD from arriving within a reasonable period of time and before any realistic opportunity to consult counsel), the fact that the defendant was arrestable in another jurisdiction, the minimally intrusive nature of breath sampling, and the nature of the defendant's detention, I am not satisfied on a balance of probabilities that the long-term effect of the admission of breath samples in these circumstances would erode public confidence in the justice system given a heightened communal interest in curbing drunk driving and having trials proceed on their merits.

CONCLUSION

[26] In the result, for all of the reasons herein, the defendant's application is dismissed in its entirety and the breath sample results are admissible on the trial proper.

Released: 04 May 2018

Justice G. Paul Renwick

Footnotes

[1] See the Ontario Court of Appeal decision released earlier this week: R. v. Roberts, 2018 ONCA 411 at para. 78.

[2] Interestingly, the Ontario Court of Appeal in R. v. George did not disapprove of removing a motorist from the scene to administer a breath screening at a nearby police station: at para. 34.