Court File and Parties

Ontario Court of Justice

Date: September 7, 2018

Court File No.: 17-688

Between:

Her Majesty the Queen

— and —

Holly Eustache

Before: Justice Angela L. McLeod

Heard on: July 10, 2018

Reasons for Judgment released on: September 7, 2018

Counsel

Mr. Hendricks — counsel for the Crown

Mr. Fagan — counsel for the accused Holly Eustache

Reasons for Judgment

McLeod J.:

Overview and Issues

[1] The accused was tried before me on a single count information alleging that on August 8, 2017, she operated her motor vehicle while her blood/alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] The trial was focused and the Crown called only two witnesses: a security guard and the arresting officer who also acted as a qualified breath technician. The accused did not testify nor did she call any evidence.

[3] Defence counsel filed a Charter application alleging breaches of ss. 9 and 10(b), seeking a remedy pursuant to s. 24(2). Three unique arguments were presented:

(1) s.10(b) – the arresting officer attended at the residence of the accused with a security guard who had witnessed the suspected impaired driving. The officer testified that the knocking on the door of the apartment was analogous to the knocking on the window of a car door in an impaired investigation; and, as such, did not believe that he was required to give rights to counsel before questioning the accused;

(2) s.9 – the accused was arrested at her home, transported to the police station and provided breath samples. The arresting officer determined that she was to be released and advised her accordingly. However:

(a) while he completed the paperwork he placed the accused in a cell;

(b) after the paperwork was completed, he continued to keep her in the cell until she 'calmed' down.

The Evidence

Jeremy Ropp

[4] Jeremy Ropp works as a security guard at the Taboo Muskoka Resort, and was so employed on the date in question. He was familiar with the accused, as she was an employee of the same resort, living in the staff quarters. The quarters were located away from the main resort, and were comprised of a 3 storey apartment building. There were many rules and regulations imposed upon the staff residents. Entrance to the building is restricted and a passcode is required. The premises are monitored by the security staff via CCTV cameras and general patrol.

[5] On August 8, 2017, Mr. Ropp observed the accused via the CCTV cameras. She was at the rear entrance of the building, and was in the company of her boyfriend who had been trespassed from the premises. It was 2 am. The accused was visibly intoxicated and needed assistance to climb the stairs that lead to her third floor unit. Mr. Ropp decided to drive to the staff residence to conduct a general patrol. When he arrived, the boyfriend was located hiding under a picnic table and was asked to leave. The accused came back downstairs and was upset with Mr. Ropp. She appeared to be intoxicated. Another staff member was overheard saying, "stop arguing, you have been drinking all night". Mr. Ropp returned to the resort.

[6] At 6 am, Mr. Ropp again observed both the accused and her boyfriend via the CCTV cameras. Both parties appeared to be drinking, and both entered a vehicle and drove off. The accused was the driver. Mr. Ropp immediately called the O.P.P to report a suspected impaired driver. He then drove towards the staff residence in an effort to locate the accused. When he arrived at the staff residence, both the accused's vehicle and the arresting officer were present. He let the officer into the secured building and walked him upstairs to the unit where the accused was residing. Mr. Ropp stood to the side while the officer knocked on the door.

[7] The accused opened the door. The officer asked if she was 'Holly'; she said no. Mr. Ropp then stepped in and identified her as Holly Eustache. The officer asked how long had it been since she was driving and the accused replied that she had been in all night, and then said that she had been back about 20 minutes. Mr. Ropp testified that this was all that took place at the door and that the officer then escorted the accused downstairs where she was arrested. The process at the unit door lasted less than 2 minutes. Both Mr. Ropp and the officer were in uniforms, clearly indicating their respective positions of authority.

Officer Kruithof

[8] Officer Kruithof has been a member of the O.P.P for approximately 10 years. On the date in question, he was working a 6 am to 6pm shift. Immediately at 6 am, he was dispatched to the staff residence of the Taboo Muskoka Resort for a possible impaired driver. He met Mr. Ropp at the building and was advised by him that the accused had been observed driving her vehicle and that she had been stumbling. Mr. Ropp escorted him to the third floor of the building.

[9] At the door of the unit, the officer knocked. A woman answered the door. The officer asked if Holly was home; the woman replied 'no'. Mr. Ropp intervened and advised that the woman was in fact Holly Eustache. The officer detected an extremely strong odour of alcohol emanating from the accused. Officer Kruithof then advised the accused that he was conducting an 'impaired/over 80' investigation and that she was the focus of the investigation. A conversation took place. The officer testified that he did not make any notes of the exchange, but probably asked her if she had been drinking and if she had driven her boyfriend home.

[10] The officer testified in cross examination that had the accused simply not answered the questions and closed the door, he would not have taken any steps other than to seek guidance from a supervisor. In short, she was not detained at the doorway. As it happened, she stayed at the door and answered his questions. Those responses were considered 'part of the investigation'. The officer testified that he considered her apartment to be like the roadside, because he was engaged in an impaired investigation. He stated that it was like asking a driver to roll down their window; you knock and then speak to them. He believed that in this process you don't need to read rights to counsel or to give a formal caution.

[11] The officer made an ASD demand. He observed the accused to have glossy and blood shot eyes. The accused put on her shoes and told the officer that she 'wasn't going to drive anymore today'. She was escorted to the cruiser and complied with the ASD demand; it registered a fail.

[12] The accused was arrested for the offence of 'over 80' at 6:24 am. At 6:25 am, the officer read the accused both her rights to counsel and the breath demand. She was transported to the detachment and arrived at 6:42 am. She was placed into a cell. She requested to speak with duty counsel and did so at 7 am. At 7:08 am, the accused was brought into the breath room. Samples were taken and registered as 177/100 and 182/100. To this point, the accused had been cooperative, calm and the officer noted that she did not display any signs of impairment. Her balance was good and her speech was normal.

[13] When the officer advised the accused of the readings and that she would then be charged with 'over 80', have her car impounded and her license suspended, she began to cry. The process was video and audio taped and the recording was filed as an exhibit. The officer advised the accused that she would be released, and that he needed to complete some paperwork first. The process, he said, would take about 30 minutes.

[14] According to the officer, in spite of determining that the accused would be released, the normal procedure was to place the subject into a cell while the paperwork was completed. The officer testified that he asked if anyone could come to pick her up. She said no. The officer believed that the accused, who was 21 years of age at the time, was very upset and he 'feared that she would harm herself'. It is important to note that the officer did not make any notations in his notebook to this effect, nor did he take any steps to provide any safeguards while she was detained in the cell. The accused had been searched prior to being placed into the cell. The officer was aware that the accused was prescribed and had taken an anti-depressant medication (Lorazapam). He did not offer her any medical attention. He testified that he put her in the cell so that he could complete his paperwork and so that she could 'calm down'. It was his intention to hold her until she did 'calm down'. He testified that had she 'calmed down' sooner, he would have released her sooner. He testified that there had been no attempt to harm herself; the accused was "just emotionally upset".

[15] Throughout the time that the accused was in the cell, the officer would occasionally look up from his desk to check the video monitor and on 2 occasions he went to the cell door. He observed the accused to be crying. The officer testified that if the accused had stopped crying, he would have considered her to be calm and thus releasable. At one point, he left the building and went outside to 'switch out his cruiser'. He was the only officer at the detachment, and thus the accused was left unattended and unmonitored. The officer did not record any of the conversation that he had with the accused when he went to the cell door, but testified that he 'probably told her to calm down'.

[16] The cell was videotaped and the recording was made an exhibit. The accused was placed in the cell (post breath analysis) at approximately 7:37 am and was removed at approximately 9:06 am (89 minutes later), when she, as the officer testified, 'assured me that she wasn't wanting to harm herself'. The officer had been to the cell door earlier at 9:00am, and had been given the same assurance, but left the accused in the cell to make sure that she wasn't 'faking being calm'. Ultimately, the officer drove her home.

Positions of the Parties

[17] The defence submits that:

(1) The accused was residing in a staff residence with rules and security personnel engaged to enforce those rules; thus, she (and any reasonable person) would have felt psychologically detained while at the residence door;

(2) A residential door is not akin to a car door during an investigation into suspected impaired driving;

(3) The sole purpose of attending at the door of the accused was to investigate Mr. Ropp's complaint of impaired driving;

(4) Liberty lost cannot be regained, even one second is too much;

(5) Given that the officer had determined that the accused would be released, and had been cooperative, there was no reason to place her into a locked cell;

(6) Even if there was some public interest in placing the accused into a locked cell, keeping her there for 89 minutes was tantamount to 'over holding';

(7) Given the combination of the booking room and cell videos (filed as exhibits) and the lack of notes and independent recollection of Officer Kruithof, this Court should find that the accused never expressed of an intent to harm herself, and that the officer was in fact engaged in 'paternal policing';

(8) Not knowing the law is not equal to acting in good faith;

(9) All three branches of the Grant test fail; to permit the admission of the breath samples in this case would bring the administration of justice into disrepute.

[18] The Crown submits that:

(1) Section 24(2) is the appropriate remedy, should a breach be established;

(2) In spite of the lack of notes, independent recollection and the videotapes filed as exhibits, there could have been a conversation about engaging in personal harm; however, "we will never know what was actually said";

(3) The officer may have acted differently, had the detainee been a male person; this case may well be an example of a systemic issue of gender bias;

(4) At no time does the accused appear to be 'distraught';

(5) A car window and a residential door are not analogous, even in an investigation into a suspected impaired driver. The officer was wrong and it would be an error to apply the same law to these different factual scenarios.

Analysis

A. Section 10(b) – Is a Residential Door Akin to a Car Door in an Impaired Investigation? Was the Accused Psychologically Detained? Was the Odour of Alcohol and the Statement of Mr. Ropp's Sufficient Grounds to Make the ASD Demand?

[19] Mr. Justice F. Kenkle summarizes the law in his text, Impaired Driving in Canada – The Charter Cases, 3rd Edition, LexisNexis Canada Inc. 2017, p.7:

Police may also approach a residence to commence or further an investigation. Where an officer knocks on the door of a house to investigate, their purpose at that time will determine the extent to which their action may impinge upon the resident's expectation of privacy. If the officer knocks on the door merely to communicate with the resident, then he or she acts within the scope of the implied license (R. v. Fowler, 2006 NBCA 90, [2006] N.B.J. No. 370 (C.A.)). On the other hand, if the officer's investigation has progressed to the point where they intend to gather evidence against the occupant and they approach the residence on that basis, then the police exceed the license provided for by the invitation to knock. There's no implied waiver of privacy rights in that context. Persons cannot be presumed to invite police to approach their home to substantiate a criminal charge against them (R. v. Evans, [1996] S.C.J. No. 1).

[20] Officer Kruithof testified that his purpose for attending at the doorway of the accused was to further his investigation. He erred in his understanding of the law; asking a driver to roll down their window in an impaired investigation is not akin to knocking on a suspect's door for the purpose of furthering that investigation.

[21] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, para. 28, the Supreme Court of Canada reviewed the law regarding detention, noting that:

The general principle that determines detention for Charter purposes was set out in Therens: a person is detained where he or she "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist" (per Le Dain J., at p. 644). This principle is consistent with the notion of choice that underlies our conception of liberty and, as such, shapes our interpretation of ss. 9 and 10 of the Charter. When detention removes the "choice to do otherwise" but comply with a police direction, s. 10(b) serves an indispensable purpose. It protects, among other interests, the detainee's ability to choose whether to cooperate with the investigation by giving a statement. The ambit of detention for constitutional purposes is informed by the need to safeguard this choice without impairing effective law enforcement. This explains why the extremes of formally asserted control on the one hand and a passing encounter on the other have been rejected; the former restricts detention in a way that denies the accused rights he or she needs and should have, while the latter would confer rights where they are neither necessary or appropriate.

[22] The accused was residing in a staff residence. Access to the building was restricted and required a passcode. Officer Kruithof was admitted to the building by the security officer, Mr. Ropp. Mr. Ropp escorted the officer to the accused's unit door. Mr. Ropp stood alongside the officer; both were in uniform. Mr. Ropp had hours earlier enforced the rules of the residence and had restricted access to the accused's boyfriend. In all the circumstances, I find that the accused would reasonably believe that she had no choice but to open the door, stand at the door and to answer the questions posed by the officer. She submitted or acquiesced because she would have no other choice. She was detained.

[23] To make an approved screening device demand under s. 254(2) of the Criminal Code, an officer must have a reasonable suspicion that a person had alcohol in their body and reasonable grounds to suspect that the person operated a motor vehicle within the past three hours. The officer may rely upon information provided by third parties (R. v. Strongquill, 43 C.C.C. (2d) 232 (Sask. C.A.)).

[24] Officer Kruithof detected an 'extremely strong odour' of alcohol emanating from the accused, and observed her to have glossy and bloodshot eyes. He made these observations sometime between 6am and 6:24am. He had received information from Mr. Ropp that he had witnessed the accused driving at 6am.

[25] I find it unnecessary to proceed with the 24(2) analysis regarding the 10(b) Charter claim. Even without the accused's responses to the officer's questions about whether she had been drinking and driving, the officer had sufficient grounds to make the ASD demand. There was evidence of alcohol consumption and evidence of driving within the previous three hours.

B. Section 9 – Should a Charged but Releasable Person be Detained in a Locked Cell While a Police Officer Completes Paperwork? Was the Arresting Officer Engaging in 'Paternal Policing', a Form of Systemic Gender Bias?

[26] The defence filed written materials, submitting that "the 'over holding' issue was an egregious misuse of the authority to detain accused persons". In short, the argument is simply that "the police cannot hold an accused person in custody until they stop crying".

[27] Section 497(1.1) of the Criminal Code outlines when an arrestee can be held in detention:

A peace officer shall not release a person under subsection 497(1.1) if the peace officer believes on reasonable grounds:

(a) That it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of the PART, having regard to all the circumstances including the need to:

(i) To establish the identity of the person;

(ii) To secure or preserve evidence of or relating to the offence;

(iii) To prevent the continuation or repetition of the offence or the commission of another offence;

(iv) To ensure the safety and security of any victim or witness to the offence; or,

(b) That, if the person is released from custody, the person will fail to attend court in order to be dealt with accordingly to law.

Officer Kruithof had already determined that the accused would be released. He advised her accordingly. His stated purpose for placing her in a locked cell was 1. To complete his paperwork; and, 2. For her to 'calm down'. Neither of these is lawful. The officer had a statutory obligation to release the accused as soon as practicable. The lengthy detention of the accused was not only unlawful, it was, as the defence submits, egregious. Holly Eustache was arbitrarily detained and imprisoned for 89 minutes. Her s. 9 Charter rights were breached.

Section 24(2) Analysis

[28] Justice Hawke thoroughly analyzed the law regarding the impact of a breach under s.9 for over holding in R. v. Lorenzo, [2016] O.J. No. 5517, paragraphs 10-12; 18-24; 26-34 and 43. I wholly adopted her analysis and apply it to the case before me. In part, she wrote:

10 Section 24(2) of the Charter reads:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. (emphasis added)

11 In the majority of cases the Charter breach is prior to the discovery of evidence but in cases like this one, where there is a s.9 breach as a result of 'overholding', the breach follows the discovery of evidence. As a result, I heard argument about whether the threshold wording of "obtained in a manner" can be met in this case given the breach follows the obtaining of evidence (i.e. the readings).

12 This threshold issue was considered recently by the Ontario Court of Appeal in R. v. Pino, 2016 ONCA 389. Laskin J.A. concluded that a Charter breach occurring after the discovery of evidence may meet the s. 24(2) threshold. After reviewing the case law he set out the approach that applies to all Charter challenged evidence under 24(2) regardless of whether the breach was before or after the discovery of the challenged evidence. This approach is summarized in paragraph 72 of the decision:

Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire "chain of events" between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these connections.
• But the connection cannot be either too tenuous or too remote.

18 Turning next to whether there was a connection between the evidence and the breach I find that there was and the connection was both contextual and temporal.

19 Before describing these connections in this case I note that Laskin J.A. in R. v. Pino, supra found a temporal connection in that case because the three breaches in that case were "...close in time and are part of a continuum straddling Ms. Pino's arrest." (para 74) Further, he noted "... I take "contextual" -- a word often used by lawyers and judges -- to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino's arrest. And the two s. 10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. ..." (para. 74).

20 The something that happened to Ms. Lorenzo is that she was detained. She was detained for two sequential investigative purposes, and thereafter she continued to be detained. There is a contextual connection between the evidence (the readings) and the breach because the decision to release or not under s.498 is to be decided in the context of each individual investigation. Justifying detention under s. 498 (1.1) involves "having regard to all the circumstances" and this inherently involves in an over 80 case, among other things, the evidence about blood alcohol levels. In addition, in spite of their mishandling of the situation both of the Staff Sergeants agreed in his/her evidence with this connection between the readings and his/her decision.

21 The connection between the evidence and the breach was also temporal as this was along a continuum and close in time. Ms. Lorenzo's last blow was at 3:00 a.m., then she was served with documents, and then immediately thereafter she was placed in a cell at 3:08 a.m.

22 In summary, the evidence and the Charter breach were part of the same transaction. Further, there were temporal and contextual connections between the evidence and the Charter breach. These connections were relevant as they were neither too tenuous nor too remote.

23 Therefore, in the circumstances of this case, I conclude that the threshold test in s. 24(2) of the Charter has been met and the remedy of exclusion of evidence is available for consideration.

B. Should there be a s. 24(2) remedy of exclusion of evidence in this case?

24 Laskin J.A. in R. v. Pino, supra at para. 82 provides a clear summary of the inquiry at this stage.

The second branch of the s. 24(2) inquiry calls on a trial judge to assess whether the admission of the evidence sought to be excluded would bring the administration of justice into disrepute. In making that assessment the trial judge must take account of and balance the three factors stipulated by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353:

• The seriousness of the Charter-infringing state conduct;
• The impact of the breach or breaches on the Charter-protected interests of the accused; and
• Society's interest in the adjudication of the case on its merits.

26 My overall assessment of the points in paragraph 25 above, taken together, is that this was a serious s. 9 Charter breach that resulted from a failure by two officers to perform a known, assigned, Criminal Code duty, with any degree of attention beyond de minimus. This directly caused the continuation of the Ms. Lorenzo's detention far beyond the last time (i.e. 3:08 a.m.) at which it could be justified. I am unable to find any factor (e.g. inadvertence, extenuating circumstances, good faith) that would attenuate the seriousness of the breach. In addition, objectively, there was no reason to detain Ms. Lorenzo beyond 3:08 a.m.

27 Charter breaches may range from trifling to serious. Although it is hard to find appropriate descriptors, serious breaches also cover a range of problematic conduct. One factor that may take a case to a higher level within the serious range is multiple Charter breaches. This did not happen in Ms. Lorenzo's case. There is a factor in this case, however, that is beyond the multiple particulars outlined in paragraph 25 above that is aggravating in the assessment of seriousness. This factor is the history of the overholding issue in earlier court cases.

28 The issues surrounding overholding are not new or novel in cases involving Peel Regional Police. I refer to this police service specifically, as opposed to the entire Peel region covered by this court, because I am unaware of any cases of a similar nature involving the Ontario Provincial Police, who also bring many similar drinking and driving cases before the court in Peel.

29 One of the other cases involving a s. 9 breach for overholding by Peel Regional Police is R. v. Cheema, [2016] O.J. No. 1787. I adopt the words of Schreck J. in that case, at paragraph 16, regarding the history of this issue and thereafter its effect on the seriousness of the breach.

In addition to this, it appears that a s. 9 breach resulting from "overholding" is not a unique occurrence in this jurisdiction: R. v. Mazzuchin, [2016] O.J. No. 371 (C.J.) at para. 93; R. v. Corbassen, [2015] O.J. No. 5298 (C.J.) at paras. 11-16; R. v. Pogson, [2015] O.J. No. 268 (C.J.) at para. 261; R. v. DeLima, [2010] O.J. No. 2673 (C.J.) at para. 29; R. v. Dunn, [2009] O.J. No. 6296 (C.J.) at para. 8; R. v. Owen, [2001] O.J. No. 6334 (C.J.) at paras. 16-17; R. v. Ewert (unreported, April 15, 1999, Ont. C.J.); R. v. Price, supra. The fact that this type of conduct continues to occur despite repeated judicial disapprobation also renders the breach more serious: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 25.

30 I conclude that there was a significantly serious s. 9 Charter breach in this case. The circumstances of this significantly serious Charter breach favours the exclusion of evidence, and to say otherwise could lead to the impression that this behaviour is being condoned, and further that it is being condoned in spite of previous judicial guidance.

(ii) The impact of the breach on the Charter-protected interest of the accused

31 The Charter interest protected by s. 9 is that everyone has the right not to be arbitrarily detained or imprisoned.

32 This interest, both pre-Charter and post-Charter, has been comprehensively regulated under the Code from the point of first contact with the police all the way through to the end of a case in court. The Charter ensures that this law governing detention and imprisonment and its application is non-arbitrary. It needs to be emphasized that the comprehensive scheme in the Code, governing detention and imprisonment, applies to everyone. The scheme requires either reasonable grounds, or a reason, depending on the point in time, for initiating and continuing detention. Reasonable grounds or reasons, as the case may be, are based on considerations determined by the Code, as applied to each individual and the circumstances involved in his/her charge(s). It is readily apparent that the goal of the Code, as supported by the Charter is to prevent arbitrary detention from "cradle to grave."

33 Inherently, the entire Criminal Code scheme requires individualized informed decisions throughout, regardless of whether the decision maker is a police officer, a Justice of the Peace or a Judge. As a result, the scheme is also inherently dependent upon reliable information being obtained and passed along to any of these individual decision makers.

34 The specific part of this larger scheme that was involved in this breach was s. 498 (1) & (1.1) of the Code. It sets out the duty of the officer and the criteria to be considered.

(iii) Society's interest in the adjudication of the case on its merits

43 The breath readings are reliable evidence and exclusion of this evidence clearly leads to a situation where the Crown has no ability to prove the Over 80 charge. As a result, society's interest in adjudication on the merits favours inclusion of the evidence.

Section 24(2) Analysis – Application of the Facts in the Case at Bar

A. 'Obtained in a Manner'

[29] The connection between the evidence and the breach was temporal as this was along a continuum and close in time. The accused completed the breathalyzer test, was provided with the results, and immediately thereafter she was placed in a cell.

[30] The evidence and the Charter breach were part of the same transaction. Further, there were temporal and contextual connections between the evidence and the Charter breach. These connections were relevant as they were neither too tenuous nor too remote.

[31] Therefore, in the circumstances of this case, I conclude that the threshold test in s. 24(2) of the Charter has been met and the remedy of exclusion of evidence is available for consideration.

B. Seriousness of the Charter Infringing State Conduct

[32] Having considered the following factors, I find that the Charter breach was serious:

(1) The officer had a statutory duty to release post arrest under s. 498 of the Code;

(2) The officer had already determined and advised that he was going to release;

(3) The officer's purpose for detaining the accused was to complete paper work and to 'calm her down' – neither of which is authorized under the Code;

(4) The reliability of the officer's evidence regarding the detention, given his lack of independent memory and lack of notes;

(5) The contradiction in the officer's evidence about his concern for the well-being of the accused and his actions in leaving her unattended in the police station;

(6) The officer's evidence that this procedure was standard practice at the detachment;

(7) The accused had no criminal record;

(8) The accused had no outstanding charges;

(9) The accused was not displaying any signs of impairment;

(10) The accused was cooperative throughout the arrest;

(11) The accused's detention was as a result of gender bias.

C. The Impact of the Breach on the Charter Protected Interests of the Accused

[33] At an individual level, Officer Kruithof ignored the fact that he had a duty under s. 498 to release the accused as soon as practicable. Indeed, he had already determined that she was to be released. His decision to place her in a cell, in order to complete paper work is a flagrant and shameful abuse of power. He kept no notes about his purported concern for her safety and left her unattended in a police station while he went outside to check on his cruiser. His interactions with the accused, coloured by gender bias, were not only an example of 'paternal policing', they were thoroughly founding a breach of her section 15 Charter rights. To use the words of Justice Hawke, "this approach displays a heightened level of arbitrariness which in turn heightens the impact of the breach on the Charter protected interest".

[34] At the institutional level, Officer Kruithof testified that this was the procedure followed in all similar cases; that is to say, all persons who have been determined releasable are then placed in a cell while the arresting officer completes paperwork.

[35] The over holding of the accused was not short; it amounted to close to 1.5 hours. As the defence submitted, any amount of unwarranted and unlawful detention is too much.

[36] The accused was charged with 'over 80' only. There were no indicia of impairment.

[37] In all the circumstances, I find that there was a substantial impact on the accused's Charter protected interests. I conclude that this factor favours exclusion as the behaviour undermines both the goals of the Code and the Charter as they concern detention. Again, to use the words of Justice Hawke, "the alternative of admitting the evidence may send a message that one's rights post-charge(s) are of no consequence".

D. Society's Interest in the Adjudication of the Case on its Merits

[38] The breath readings are reliable evidence and exclusion of this evidence will result in the Crown's inability to prove the 'over 80' charge.

E. Overall Balancing

[39] The Crown acknowledged that if the accused had been a male person, the circumstances may well have been different. While the defence did not raise a s.15 Charter argument, one can imagine the propriety of same. Constable Kruithof, a male officer, believe that because the accused was crying she was at risk of harming herself. There is absolutely no evidence in support of that belief, and it is grounded in nothing short of gender bias. His decision to place the accused into a locked cell was nothing short of shameful. This Court is, and the public at large I am sure would be, outraged to learn of the abuse of power.

[40] I conclude, as did Justice Hawke, "in order to ensure the long term repute of the justice system, the court needs to disassociate itself from the police conduct that ignored the goal of preventing arbitrary detention and imprisonment that runs through the entire criminal justice system. In this case, the need for the court to disassociate itself from the police conduct … is greater than society's interest in prosecuting [the accused]", and, "we cannot expect public confidence in the judicial system if the court does not disassociate itself from recurring unjustified behaviour that could have been easily prevented".

[41] It is 2018. To believe that 50% of the population is being treated differently than the rest, for no other reason than their gender, is alarming. It is sad, and it cannot be tolerated or sanctioned by this court.

Conclusion

[42] Without the breath readings, the Crown does not present any evidence to support a conviction on the one count of 'over 80' – the accused will be found not guilty.

[43] As a final note, I wish to endorse the comments of Mr. Fagan, who was acting in his capacity as duty counsel. As the accused was not facing the possibility of a custodial sentence, she was denied a Legal Aid Certificate. She was unable to fund her defence privately. As a self-represented accused, she would have struggled greatly to articulate the issues raised in this trial. She may very well have been convicted. Mr. Fagan is to be acknowledged for ensuring that these issues were not only raised, but well argued. He has served not only his client, but the community as well.

Released: September 7, 2018

Signed: Justice Angela L. McLeod