Court Information

Ontario Court of Justice

Date: 2018-06-25

Court File No.: Newmarket 17-02815

Parties

Between:

Her Majesty the Queen

— And —

Michael David Porter

Judgment

Evidence heard: 18, 19 June, 2018

Delivered: 25 June, 2018

Counsel:

• Mr. Thompson Hamilton, counsel for the Crown
• Mr. Hussein Aly, counsel for the defendant

Decision

KENKEL J.:

Introduction

[1] Even seemingly routine police investigations can be dynamic, quickly changing in focus. In this case officers stopped Mr. Porter to investigate whether his BMW was the one involved in an earlier hit and run collision. When the officers spoke to Mr. Porter they learned he was a suspended driver with no license, ownership or insurance documents. He was arrested for driving under suspension. During the interaction the focus changed again when the odour of alcohol was detected. That led to a test on an Approved Screening Device (ASD). The fail result on the ASD test led to further tests at the station which resulted in the "Over 80" charge before the court. The original concern about the prior hit and run incident was resolved at the scene as the damage to Mr. Porter's vehicle was on the opposite side to the damage seen on the BMW that fled.

[2] The defence concedes that the Crown has proved the reliability of the breath test readings and the elements of the Over 80 offence subject to consideration of the Charter issues. The defence submits that the officers had no reason to stop the accused. The traffic stop was actually a pretext to permit the officer to conduct an illegal investigation of the accused contrary to s.9 of the Charter. The arrest of the accused for driving while suspended was similarly a means to enable an illegal search incident to arrest contrary to s.8 of the Charter. The search of the vehicle for registration and other documents was unlawful and contrary to s.8. The accused was not advised immediately of the reasons for his detention contrary to s.10(a) of the Charter. His rights under s.10(b) were violated because the officer failed to provide right to counsel advice immediately upon arrest and asked questions before Mr. Porter spoke with a lawyer. The s.9 violation is serious and the focus of the defence application. It renders everything that followed unlawful. While the remaining breaches may be minor in their impact, along with the s.9 breach and collectively they show a disregard for Charter rights such that the breath test readings should be excluded pursuant to s.24(2) of the Charter.

[3] The Crown submits that the officers had lawful authority to stop Mr. Porter under the Highway Traffic Act RSO 1990 c H8 (HTA) to determine whether he was involved in the hit and run incident. Constable Leibold had authority to arrest the accused for driving while under suspension. While an arrest is a matter of discretion, the accused at that time remained a suspect in the hit and run incident and this arrest was lawful and reasonable. The pat down search and the vehicle search were both properly limited. Nothing was seized during either search. PC Leibold wasn't certain if he advised the accused of the reason for the stop when he first spoke to him at the window, but it's his usual practice to do so. In any event the accused would have been aware of the reason for his detention within a minute as he was arrested for driving while under suspension. Constable Bembridge provided the reason for the stop, full right to counsel advice and cautions in the police car after the arrest. While the officer may have breached s.10(b) by asking two questions before the accused spoke to a lawyer, he was not trying to further the investigation, the accused provided no incriminatory response and there was no impact on the accused's Charter rights. In the alternative, the brief delay in providing the HTA reason for the detention should not result in the exclusion of reliable breath test evidence essential to the Crown's case.

Charter s.9 – Arbitrary Stop

[4] PC Leibold was discussing an unrelated investigation in a parking lot with PC Bembridge when he heard a car making an unusual, repetitive noise. Both officers left the parking lot and followed the car. The car was a BMW and it appeared to have some front end damage that the officer thought might be causing the noise. The officers were aware that there had been a hit and run incident involving a BMW with front end damage in that area earlier that evening. Mr. Porter was stopped by both officers so that they could investigate whether Mr. Porter's BMW was involved in the earlier incident.

[5] Constable Leibold's notes record the hit and run investigation as the reason for the stop. At trial he added that he also was concerned about the mechanical fitness of the vehicle given the noise and the possibility that the driver was impaired as he was driving a vehicle with that damage and may have had reason to flee a prior collision. In cross-examination the officer agreed that the hit and run investigation was the central reason for the stop. He viewed the further aspects mentioned at trial as flowing from that reason and related to it, not as separate facts added to address s.9 concerns.

[6] The defence submits that the stop of the accused's vehicle was arbitrary. The fact that the officers did not immediately inform the accused of the reason for the stop shows that they had no reason. The defence submits that this circumstance shows the reason given by the officers in court was generated later, after-the-fact, to rationalize the stop. The fact that only one officer heard the repetitive noise while the other heard the louder performance engine shows the reason for the stop was fabricated.

[7] Section 216 of the HTA authorizes a police officer engaged in the lawful execution of his or her duties to require a vehicle to stop. The officers had just completed an unrelated domestic call and were discussing that event when their attention was drawn to the accused's vehicle. Constable Leibold's testimony that he noticed a repetitive noise coming from the accused's vehicle is logical given the damage later observed to that car. His actions were consistent with that observation – he stopped what he was doing to investigate. The fact that the second officer who followed only noticed the louder noise of the performance engine does not reasonably detract from PC Leibold's evidence. The evidence of both officers was logical and credible.

[8] Considering the unusual noise made by the vehicle being driven by the accused, the fact that it was a BMW, the presence of front-end damage and the fact that a similar BMW had recently been involved in a hit and run collision nearby, I find the officers were acting within the scope of their authority under the HTA when they caused Mr. Porter to stop for the traffic investigation. The stop was not arbitrary and was authorized by law.

[9] The assertion that the hit and run investigation was an after-the-fact rationalization is further rebutted by the evidence of the officer's radio communication with the central dispatcher which can be heard on the in-car video. In those communications one can hear PC Leibold taking steps to determine whether the Porter BMW was involved in the prior hit-and-run. The fact of a prior hit and run involving a BMW nearby is discussed during the radio call and was not disputed at trial. The radio communications show PC Leibold received further details from the dispatcher about the expected location of damage to the suspect vehicle. He checked Mr. Porter's car and determined that the damage to the Porter BMW was on the opposite side of the vehicle from the suspect BMW. PC Leibold was able to clear the accused of involvement in the hit and run at the roadside, but by that time Mr. Porter had been arrested for driving while suspended and was under investigation for driving while Over 80. The fact that Mr. Porter was cleared of involvement in the hit and run after investigation does not retroactively render the stop illegal.

Charter s.9 – Arbitrary Arrest

[10] The defence concedes that the officer had a discretion as to whether to arrest Mr. Porter for driving while suspended, but the defence submits that the arrest in this case was arbitrary. The Charter application states, "… it was simply a ruse to search the Applicant and his vehicle".

[11] Section 217 of the HTA permits an officer to arrest a person for contravention of s.53 of that Act, driving while under suspension. Constable Leibold explained that he chose to arrest the accused in this case to secure the accused and for officer safety related to the ongoing hit and run investigation. The arrest was authorized by law and there's no evidence it was done for any improper purpose. The very brief pat down search of the accused and the limited search of his vehicle contradict the assertion that the officer was using the arrest power as a pretext to engage in a drug search.

Section 8 – Search Incident to Arrest

[12] The accused was searched incident to arrest for officer safety reasons and to check if he had relevant evidence such as driving documents in his possession. Section 212 of the HTA directs an officer to secure possession of a suspended license. As the in-car video shows, the search was brief and limited. Nothing relevant was found. There's nothing in the manner of search that supports the defence theory of an underlying second purpose. The Crown has proved the search was lawful as incident to arrest.

Charter s.8 – Search of the Vehicle

[13] PC Leibold conducted a limited search of the BMW incident to arrest. He testified he was looking for documentary evidence related to the traffic investigation that would be typically found in a vehicle – identification, a license, registration and insurance documents. His search was brief and limited to the console, the seat area and the glove box, all places where those items might reasonably be found. He didn't search under seats and he didn't open the trunk. The manner of search does not support the defence assertion of an underlying illegal purpose. I cannot accept the accused's evidence that he thought he heard PC Leibold ask the passenger about drugs or guns while Leibold was inside the vehicle. The accused was standing outside behind his car at the time. PC Bembridge was standing in the same area and didn't hear any such statement. The in-car video which was active where the accused and PC Bembridge were standing doesn't record any such statement. The accused admitted no officer asked him about drugs or guns. The credible evidence of PC Leibold shows no such statement was made. The Crown has proved the search for evidence incident to arrest was authorized by law and did not breach s.8 of the Charter.

Charter s.10(a) – Advice About the Reasons for the Stop

[14] There was a delay in informing the accused about the reason for the traffic stop. Constable Leibold didn't remember whether he'd specifically told the accused the reason at the window at the time of the stop as per his usual practice, but the accused's later conversation in the car with PC Bembridge where he specifically complained about not being told the reason for the initial stop shows the officer forgot to do so in this case. Section 10(a) of the Charter requires that the accused be informed "promptly" of the reasons for his detention.

[15] Just after the stop Mr. Porter told the officers he was a suspended driver. He was arrested for that offence. As he agreed in cross-examination on the Charter voir dire, within a just over a minute of the stop Mr. Porter was aware of the reason for his detention. Once PC Bembridge confirmed the accused had an odour of alcohol on his breath after they moved into the police car, Mr. Porter was given an ASD demand and test. He was advised of the further reason for his detention immediately after the fail result.

Charter s.10(b) – Right to Counsel Advice

[16] Mr. Porter was given full right to counsel advice in the police cruiser just after he was arrested for the Over 80 offence. PC Bembridge was careful enough to ask Mr. Porter whether he had a particular lawyer he wished to speak to and then record the details provided. Mr. Porter spoke with counsel of choice at the police station prior to being compelled to participate in the approved instrument tests.

[17] The defence submits that the accused's s.10(b) rights were violated because the right to counsel advice wasn't uttered "immediately" at the moment the accused was arrested for the traffic offence. In R v Suberu 2009 SCC 33, the Supreme Court stated at paragraph 41 that the words, "without delay" in s.10(b) of the Charter mean "immediately".

[18] Taking the accused to the police car out of the rain and reading the accused his right to counsel advice in that setting where both the accused and the officer could concentrate was plainly a good idea in this case where the s.10(b) advice required further explanation beyond the standard advice. It's not plain that the Suberu immediacy requirement is so strict that it precludes an officer from moving the accused to a nearby car where the right to counsel advice can be properly given and understood. Once in the car, there was another change in the investigation. The officer detected an odour of alcohol that led to an ASD test demand. That demand engaged a "forthwith" ASD testing sequence where the right to counsel was reasonably suspended. After the accused failed that test he was advised of the new charge and then the officer immediately provided right to counsel advice. It was reasonable to delay providing right to counsel advice until that could be done properly in the cruiser. The competing ASD issue changed the focus for a few minutes but immediately after that test sequence the accused was provided full s.10(b) advice.

[19] I agree with the defence there were breaches of the s.10(b) duty to hold off the investigation until the accused had spoken with a lawyer. Immediately after the accused registered a "Fail" reading on the ASD the officer asked the accused how much he had to drink. That question was more of a rhetorical comment given that the accused had earlier denied drinking, but the officer admitted it shouldn't have been asked and I agree.

[20] In cross-examination the officer was also asked about a question regarding the owner of the vehicle. The officer was not investigating an offence during that discussion but was trying to arrange a tow of the vehicle and he needed to notify the owner. When he was told that the owner was out of town, by an accused who had no license and no documents, the officer asked Mr. Porter whether the owner knew the accused was driving the vehicle. The defence submits that this question was potentially investigative. The officer explained that he was focused on arranging the tow of the vehicle and was only concerned with notifying the owner at that point. He believed the caution read to the accused was sufficient to permit that conversation. Nothing came of the question or answer. Although the officer was not conducting an investigation during that conversation, I agree with the defence that it's important the officer understand generally that the caution read to an accused does not relieve him of the duty to hold off even potentially investigative questions until the accused has had the opportunity to speak with a lawyer. Making arrangements for a tow and other routine conversation is permissible, but questions that have the potential to lead to another investigative issue should be held until the accused has spoken with counsel.

[21] The section 10(b) breaches were not serious. The Crown did not seek to tender the accused's responses in evidence. The defendant's responses did not involve any admission against interest. The officer realized his question related to the investigation about the accused's drinking was a mistake. The officer otherwise advised the accused of his right to speak with a lawyer and the accused spoke with counsel of choice before the approved instrument tests were conducted. The two questions in context were careless and could not fairly be characterized as an attempt to undermine the accused's s.10 rights. The officer did not follow up on either question, consistent with his evidence that he was not trying to further an investigation. Applying the test in R v Grant 2009 SCC 32, the administration of justice would be brought into disrepute by the exclusion of reliable breath test evidence essential to the Crown's case for minor breaches with no impact on the rights that s.10 was meant to protect.

Conclusion

[22] The Crown has proved that the search of the accused incident to arrest and the limited search of the accused's vehicle were both authorized by law and reasonable. There's no breach of s.8.

[23] The defence has failed to prove the s.9 and s.10(a) breaches alleged on the balance of probabilities. The defence has proved s.10(b) was breached, but the breaches were minor and could not reasonably result in the exclusion of the breath test evidence under s.24(2).

[24] The Charter applications are dismissed. The Crown has otherwise proved the offence alleged beyond a reasonable doubt. There will be a finding of guilt.

Delivered: June 25, 2018

Justice Joseph F. Kenkel