Court Information

Court: Ontario Court of Justice

Date: October 5, 2018

Court File No.: Toronto, College Park 14-15011370

Before: Justice J.W. Bovard

Heard: April 12, 13; August 8, 2018

Reasons for Ruling on Charter: Released October 5, 2018

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Robert Prosser

Counsel:

• M. Morley — counsel for the Crown
• C. Kerr and G. Stortini — counsel for the defendant Robert Prosser

Reasons for Judgment

Introduction

[1] These are the court's reasons for its disposition of the accused's application for the exclusion of evidence as a result of breaches of his rights under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms.

[2] On November 1, 2014, the police charged Robert Prosser with impaired care or control and with "over 80" care or control. In addition, they charged him with possession of crack cocaine.

[3] The arresting officers began investigating Mr. Prosser when they saw him and a woman sitting in his truck in a laneway. Because of the positioning of Mr. Prosser and the woman the police suspected that a prostitution or indecent act type of offence might be taking place.

[4] During the course of their investigation, they determined that there were no such offences taking place. However, they arrested Mr. Prosser for impaired care or control. When they searched his truck they found numerous bottles of liquor. One contained liquor; the others were empty. They also found crack cocaine.

[5] The police took Mr. Prosser to the police station where he gave breath samples that were over the legal limit. He was charged with "over 80" care or control.

[6] The defence argues that the officers did not have reasonable and probable grounds to arrest Mr. Prosser for impaired care or control. Therefore, they detained him arbitrarily and conducted an unreasonable search and seizure by taking the breath tests and by searching his truck. In addition, they breached his rights to counsel by not re-advising him of his right to counsel when they charged him with possession of cocaine.

[7] The Crown disagrees with the defence's contentions and asks the court to dismiss the Charter application.

[8] The case proceeded in a blended fashion, but the defence asked the court to determine the Charter issues first. Should the court decide in favour of the defence, there would be no evidence against Mr. Prosser and the charges would be dismissed.

[9] The defence asks for an order excluding all of the evidence from the beginning of the police's interaction with Mr. Prosser up to the taking of the breath samples.

The Evidence

Admissions

[10] The defence admits identity, jurisdiction and date. Also, that the substance that the police found in Mr. Prosser's truck is crack cocaine. Continuity of all of the items found in Mr. Prosser's truck is also admitted.

Oral Evidence and Documents Introduced Through Witnesses

[11] Officer Prechotko and her partner, Officer Ingley, were on bicycle patrol as part of the community response unit. They were in full, brightly coloured uniforms, which include reflective strips that shine when light hits them.

[12] Part of their duties are to follow up on community complaints. Community members make their complaints in various ways. They fill out complaint forms at the police station, approach officers while they are on patrol, send emails to the police station, call the station, or pass on complaints at meetings between the police and the community housing agencies. The complaints that arise out of the meetings with the community housing agencies are not put in a formal community complaint form.

[13] The police station's administrative clerk delegates the written complaints to the officers. None of the complaints are regularly updated on a computer system, however. Sometimes, the complaints are just passed on verbally from officer to officer. The defence requested disclosure of all of the community complaints in writing up to November 4, 2014. They ranged only from December 17, 2004 to February 7, 2010.

[14] Officers are assigned particular zones. The officers' duties include patrolling buildings and laneways, investigating Liquor Licence offences, and drugs offences. They also walk through the buildings in their area to deter criminal activity. They engage in "pro-active policing."

[15] Officer Ingley said that the community response unit takes care of "mostly complaints that are put through the community response office, and then they get assigned to us".[1]

[16] Officer Prechotko said that on the day in question she had information from other officers that there were ongoing problems at 1117 Danforth Avenue. She received this information in the spring or summer of 2014.

[17] Even though this was Officer Ingley's "zone", she was the one that told him that there were issues at this address. Officer Ingley said that she told him that she had a community complaint regarding "disorderlies in the front and the back". His experience with 1117 Danforth Avenue is "with a lot of people selling drugs, using drugs, drinking out back, smoking".

[18] Typically, their patrol includes checking to make sure that the door to the building is not left open and that there are not persons coming and going from the building involved in illegal drug activity. They are also concerned with persons taking drugs in the laneway that is adjacent to the building.

[19] Officer Prechotko said that on the day in question she and Officer Ingley were patrolling at the front of the building. They did not go into the front door though. They did not see anyone loitering at the front so they went to the back of the building. Officer Ingley said that they were checking for "disorderlies".

[20] In order to get to the back of the building they have to go through the parking lot of a funeral home that is one building west of 1117 Danforth Avenue. This is a well-lit area. There is a laneway directly behind the building. It starts at the beginning of 1117 Danforth Avenue.

[21] Officer Ingley said that the laneway is used for "vehicle access". It goes down to the Beer Store at the corner of Danforth Avenue and Greenwood Avenue. The laneway is an access point for the neighbours to get their vehicles.

[22] Officer Prechotko said that Mr. Prosser's truck was parked in the laneway. It was 19:01 hours. The truck was turned off. She did not mention in examination-in-chief that she called dispatch at 19:01 or 19:02 about the license plate. After being cross-examined on whether she called dispatch at this point, she stated in re-examination that she had called dispatch at this time.

[23] Defence counsel questioned her partner, Officer Ingley, about the location of the truck:

Q. But, the community complaints don't deal with anybody doing anything in cars. They deal with people from the building doing drugs, misbehaving, drinking and the like.

A. That was the nature of the community complaints

Q. Right. Right. So, you ....

A. Conversely, he wasn't – or the car wasn't at 1117, it was behind the funeral home.

Q. Right. It was behind the funeral home.

A. Yeah.

Q. It wasn't in the alley behind 1117 Danforth Avenue.

A. Not directly behind it, no.

[24] Officer Prechotko said that when they saw the truck they rode over to it. Mr. Prosser was in the driver's seat when she rode by the driver's side of the truck. She passed by at a distance of two feet. A female was in the truck on her knees leaning down over the driver's side toward Mr. Prosser.

[25] Officer Ingley said that he rode by the truck at about 5 KPH and "quickly observed" the same thing. He later clarified that she was leaning on the console. He differed from Officer Prechotko in that he said that they both drove by on the passenger side. In these circumstances, I consider this to be a minor discrepancy. Officer Ingley confirmed that it was 19:01 hours. The woman was identified later as Ms. Beata Konasjenko.

[26] Although Officer Prechotko did not see what Ms. Konasjenko was doing and she did not see Mr. Prosser's pants down, she thought that they may have witnessed a "potential" offence. They passed the truck and turned around to go back and investigate. Both officers went to the passenger side window. Officer Prechotko called dispatch to tell them that she was with a vehicle at the back of 1117 Danforth Avenue.

[27] Officer Prechotko testified that when she and Officer Ingley got back to the truck Ms. Konasjenko was seated in the passenger's seat. Mr. Prosser was just sitting in the driver's seat. Officer Ingley testified that Ms. Konasjenko was still on her knees over the console facing Mr. Prosser. This was not in his notes. I did not take inconsistency to be detrimental to the officers' credibility or reliability to the extent that I would not believe that they saw Ms. Konasjenko on her knees as they described. The issue is not when she was sitting in the passenger seat; it is that at one point she was on her knees facing Mr. Prosser.

[28] The officers began an inquiry regarding the relationship between Ms. Konasjenko and Mr. Prosser. They told them that they were investigating an act of prostitution.

[29] Mr. Prosser told them that they had been talking about Ms. Konasjenko's children. He said that it was a heated discussion. She was upset and had been crying. Officer Prechotko did not think that she looked upset. Both officers testified that she did not appear to be crying. Officer Prechotko wanted to ask more questions with regard to whether they were in an intimate relationship. The investigation turned into one of domestic violence.

[30] Mr. Prosser was extremely upset that they were asking them questions. He asked them to leave a couple of times. He also asked if he and Ms. Konasjenko could leave. But the officers wanted to get further information to figure out what was going on.

[31] Officer Ingley explained to Mr. Prosser that they could not leave at that point because he told them that he and Ms. Konasjenko had been having a heated conversation about Ms. Konasjenko's children. But neither one of them knew the other's last name. Therefore, he had to investigate what their relationship was and whether there was a "domestic related incident". Officer Ingley testified that he did not stop him from leaving and that he did not "exactly say no" he could not leave. Rather, he told him that he had to conduct an investigation to determine his relationship with Ms. Konasjenko. This is inconsistent with his evidence that he told Mr. Prosser that he could not leave.

[32] As Officer Ingley was questioning Mr. Prosser he was shining his flashlight into the truck. He said that he did this in order to see inside of the truck to ensure that there were no safety concerns for the officers and to see Ms. Konasjenko's face better to see if she was crying. Mr. Prosser complained about this. Officer Ingley told him that he was not shining the light in his face. Then he did shine it in his face for "seconds" to demonstrate what it would be like if he were doing that. Mr. Prosser squinted at the light in his eyes; they looked watery or glazed. Officer Prechotko described his eyes as bloodshot and glossy.

[33] Officer Ingley got a little bit closer to the inside of the truck. He smelled what appeared to be the odour of alcohol coming from inside of the truck. He did not know exactly where the odour was coming from.

[34] He asked Mr. Prosser if he had drunk anything. Officer Prechotko testified that he said that he had not drunk anything. Officer Ingley testified that he did not give a verbal response.

[35] Mr. Prosser continued to be agitated that they were bothering him. Officer Ingley said that he was talking over him when he tried to speak to Mr. Prosser. In addition, he would not answer his questions.

[36] This all occurred between 19:01 and 19:04 hours.

[37] Officer Prechotko told Mr. Prosser that they had the right to continue asking him questions "with regards to the care and control and as well as we still hadn't ascertained at that point what relationship, if any, the male and the female had".[2]

[38] Officer Prechotko said that when Mr. Prosser got out of the truck he told Ms. Konasjenko to get out as well, which she did. Officer Ingley continued to speak with Mr. Prosser. At 19:04 hours Officer Prechotko called for backup because Mr. Prosser continued to be quite agitated and was putting his arms up in the air. Officer Ingley said that he asked her to call for backup.

[39] Officer Ingley demanded a couple of times that Mr. Prosser show him his driver's license because he had not identified himself yet. Mr. Prosser did not give it to him. At this point neither officer had any intention to arrest Mr. Prosser.

[40] Officer Prechotko continued to speak with Ms. Konasjenko. She ascertained that it was not a case of intimate partner violence. Up to now Officer Prechotko did not have any grounds on which to request a road side screening device. Nor did Officer Ingley ask her to request one.

[41] Officer Ingley testified that Mr. Prosser reached for the keys in the ignition and turned off the radio. Then he made efforts to get out of the truck. He was getting increasingly upset. Officer Ingley thought that his behaviour was unpredictable. He seemed angry and his voice was loud. Mr. Prosser got out of the vehicle with the keys. Officer Ingley did not try to stop him.

[42] Mr. Prosser stood directly in front of Officer Ingley and spoke to him. Officer Ingley smelled the strong odour of an alcoholic beverage coming from his mouth area. The officer also saw a partially full bottle of liquor beside the centre console of the truck. Mr. Prosser's face was red. Officer Ingley was not sure if that was because he was angry. Mr. Prosser was swearing. His voice was quite loud. He said that the police were harassing him for no reason. He wanted to continue about his business.

[43] Officer Ingley asked him again for his license. Mr. Prosser got his wallet and was holding it with both hands in front of him. He was "kind of searching for it, but he's not really". It was as if he could not focus on the task. Then he took a big sigh to calm himself down and produced his license. His movements were "slow and steady, very deliberate" as if his fine motor skills were affected by the consumption of alcohol and he had to concentrate in order to find his license. However, Officer Ingley did not note any other actions by Mr. Prosser as being slow and deliberate. He said that it was because he did not pay particular attention to them.

[44] At this point, Officer Ingley formed the opinion that Mr. Prosser's ability to have care or control of the motor vehicle was impaired by alcohol. However, he did not arrest him because he was concerned about how irritable and aggressive he was. The officer felt intimidated. Mr. Prosser was bigger than he was. He thought that Mr. Prosser would fight him if he tried to arrest him. He would not have stood a chance had they fought. He did not know where Officer Prechotko was at that point. He wanted to wait for backup to arrive before he arrested him.

[45] Officer Firth said that he and Officer Muscat-Drago arrived at 19:08 hours. Officer Ingley put it at 19:07 hours. Officer Prechotko told them to go speak with Officer Ingley who was still speaking Mr. Prosser. While they did this, Officer Prechotko checked out Ms. Konasjenko on the computer in Officer Firth and Muscat-Drago's police cruiser.

[46] While she was doing this, at approximately 19:10 hours, Officer Ingley arrested Mr. Prosser for impaired care or control and brought him to the police cruiser. Officer Prechotko was "in the area" and could hear when Officer Ingley read Mr. Prosser his rights to counsel, made a breath demand and cautioned him.

[47] However, she said that she did not specifically recall having heard any of the rights to counsel or the caution. She said that she was only present for a portion of the reading of the rights to counsel. Her evidence on this point is confusing.[3] She agreed with defence counsel's summary of her evidence on this point as being that she may not have heard the rights to counsel and caution. At minimum she saw them being read.[4]

[48] At this point, Officer Prechotko could smell the strong odour of alcohol on Mr. Prosser's breath because she was beside him. However, she did not record any indicia of impairment in her notes other than this and that he had bloodshot, glossy eyes.

[49] Mr. Prosser complained that he did not know why he was being arrested. Officer Ingley tried to explain why he arrested him. Mr. Prosser would not accept what he told him. He insisted that the police administer a roadside screening device test to him. Officer Ingley declined because he had arrested him for impaired care or control.

[50] He and another officer took Mr. Prosser by the arm and escorted him to Officers Firth and Muscat-Drago's police cruiser. Officer Ingley testified that the in-car camera video shows that Mr. Prosser "stumbled a bit" once on the way. I note, of course, that this was after he arrested him and it did not form part of his grounds of arrest. In any case, I did not see a stumble. What I did see is that while they were waking to the cruiser, Mr. Prosser turned slightly to the side to say something to a person that was standing near them.

[51] Officer Firth said that he arrived at the scene at 19:08 hours. He saw Mr. Prosser's truck parked in the laneway to the rear of 1117 Danforth Avenue. It was blocking the laneway. He heard Mr. Prosser speaking "fairly loudly" to Officer Ingley. Officer Firth went to stand by Mr. Prosser and Officer Ingley while they spoke to each other.

[52] He was close enough to Mr. Prosser to be able to smell the odour of an alcoholic beverage on his breath. Mr. Prosser was expressing his concern as to why the police were investigating him in the first place. He was "argumentative overall, trying to speak over top of the officer".

[53] Officer Firth stood by while Officer Ingley arrested Mr. Prosser. Then he helped Officer Ingley to put Mr. Prosser in the rear of the police cruiser. Officer Firth said that "The other officer that was there read rights to counsel, cautioned, instrument demand". This differs from Officer Ingley and Officer Prechotko's evidence that it was Officer Ingley that did these things.

[54] Officer Ingley said that at 19:15 hours he put Mr. Prosser into the police cruiser. He read him his rights to counsel. Mr. Prosser said that he understood and that he would like to call his lawyer. Officer Ingley did not enable him to call his lawyer at this point because there was no privacy in the cruiser. He read Mr. Prosser the caution, which he said that he understood. The caution was as follows:

you are charged or will be charged with have care and control of a motor vehicle while impaired by alcohol. You're not obliged to say anything, unless you wish to do so, but whatever you do may – whatever you say may be given in evidence, do you understand?

[55] Officer Ingley added that:

He did understand that. I did say, do you wish to say anything in answer to the charge? And at that point I believe he was continually talking and I didn't get a response from that. Yeah, he was continually talking about what had happened.[5] (emphasis added)

[56] Next, he made a breath demand on Mr. Prosser.

[57] At 19:22 hours, Officer Ingley called the police dispatcher to find out where the nearest Intoxilyzer technician was located. At 19:24 hours, the dispatcher told them where the nearest technician was located. Officers Firth and Muscat-Drago took Mr. Prosser to the police station so that he could give samples of his breath.

[58] Officer Prechotko and Officer Ingley searched Mr. Prosser's truck incident to the arrest to see if there was any evidence with regard to the charge of care or control. Ms. Konasjenko was no longer required so she left the scene.

[59] Officer Prechotko opened the driver's side door and found a 375 mL. bottle of vodka that was ¾ full. It was between the driver's seat and the centre console. There were several empty bottles of alcohol in plain sight in the back of the truck and in other locations of the truck. Officer Ingley found an empty Smirnoff bottle under the driver's seat and two clear glasses in the console. He did not say whether they were empty or not.

[60] Officer Ingley also found approximately .64 grams of crack cocaine in an Advil bottle. There were several crack pipes and syringes in the back of the truck on the floor.

[61] After this, Officers Prechotko and Ingley and went to the police station where Mr. Prosser was giving his breath samples. They arrived at 20:51 hours. They learned that Mr. Prosser had just finished giving his first sample and that he had spoken to his lawyer, who asked that the police call him back. They took over custody of Mr. Prosser from Officers Firth and Muscat-Drago.

[62] At 21:14 hours they took Mr. Prosser to give his second breath sample. Both of the readings where over the legal limit of 80 mg of alcohol in 100 mL of blood. On his first test he registered 147 mg of alcohol in 100 mL of blood. His second test resulted in a reading of 126 mg of alcohol 100 mL of blood. Consequently, they charged Mr. Prosser with care or control "over 80".

[63] Officer Prechotko said that Mr. Prosser's symptoms of being impaired did not change at the station from what they had been at the roadside. After he finished giving his breath samples she began to do the required paperwork for the case. At 21:54 hours she called, Mr. Stortini, Mr. Prosser's lawyer. Mr. Prosser spoke to Mr. Stortini in a private telephone booth.

[64] The last thing that Officer Prechotko did on the case was to take Mr. Prosser back to 55 Division with Officer Ingley.

[65] Officer Ingley completed the paper work and served Mr. Prosser with a true copy of the certificate of qualified technician and the test record card for his breath readings. He also served him with a 90-day driving suspension and a notice that they were going to impound his truck.

[66] Officer Firth took Mr. Prosser to the police station to give his breath samples. During the ride they discussed various things such as the situation regarding bail, what was going to happen to his truck, and which police station they were going to.

[67] Officer Firth did not notice any peculiarities about how Mr. Prosser discussed these issues except for perhaps some stumbling or repetition. But the officer did not know whether this was his normal way of speaking. He did not make any notes in this regard in his memo book except maybe concerning the repetition.

[68] During the ride to the police station Officer Firth received a radio call indicating that Mr. Prosser was arrestable for possession of cocaine. This undoubtedly was because Officer Ingley had found cocaine in Mr. Prosser's truck. Officer Firth did not re-advise Mr. Prosser of his right to counsel, however, it does not appear that he had been arrested yet for this offense.

[69] Officer Firth thought that Mr. Prosser was on a recognizance so he asked him questions about it. Mr. Prosser responded to his questions.

[70] Officer Firth did not notice anything unusual in Mr. Prosser's behaviour or speech during the booking in process except that when defence counsel asked him about whether Mr. Prosser swayed as he was standing in front of the booking Sergeant, Officer Firth said that he "was making movements again towards the-towards the desk table, for lack of a better term …". He said that Mr. Prosser moved "without direction and those types of things …". But he added that he did not know whether that was his normal behaviour. He conceded that Mr. Prosser was not in a "normal situation", being under arrest and handcuffed in a police station.[6]

[71] Officer Firth did not notice any unusual behaviour or speech on Mr. Prosser's part when they strip-searched them.

[72] Officer Firth did not make any notes in his memo book with regard to the state of Mr. Prosser's eyes during the time that he was involved with him. He said this may have been because he did not see any symptoms of impairment in his eyes but he considered himself "a glorified taxi driver for this occurrence, so I may not have made those notations as I would have if I was originally investigating".[7] However, he conceded that if there had been anything "outrageous" about the state of his eyes he would have noted it.

[73] After Mr. Prosser was booked into the station, Officer Firth's partner, Officer Muscat-Drago, called Mr. Prosser's lawyer, Mr. Stortini. Officer Firth took Mr. Prosser to a private booth so he could speak with Mr. Stortini privately. Officer Firth also spoke briefly with Mr. Stortini. He told him that he would let him know whether or not a bail hearing would be required for Mr. Prosser.

[74] At about 20:42 hours, Mr. Prosser finished speaking to Mr. Stortini. He asked to use the washroom. Officer Firth took him to the washroom. At 20:44 hours he took him to the breath room. At 20:52 hours, after the first breath test was completed, he took Mr. Prosser to a holding room to wait for the second breath test. Officers Prechotko and Ingley arrived at the station and took over custody of Mr. Prosser. Officer Firth brought them up to date regarding the case. After this he had no further involvement in the case except to call Mr. Stortini to let him know that a bail hearing would be required for Mr. Prosser.

[75] The breath technician, Officer Thompson, testified that at 20:44 hours Mr. Prosser came into the breath room for his breath tests. This was after he had spoken to counsel and gone to the washroom.

[76] Officer Thompson noted that Mr. Prosser's balance "appeared lightly unsteady". His gait was unsteady as he walked. He almost stepped on his own feet at one point. His eyes were very glossy and bloodshot. His speech was slightly slurred, not crisp. He said that "At times his words almost sounded as if they were rolling and blending together as one. His general ability to have clarity or focus seemed compromised …"[8]

[77] Officer Thompson further described Mr. Prosser as follows:

His general ability to have clarity or focus seemed compromised, re-focuses on – on my person when I was in his center.

Q. I'm sorry, what was that last point?

A. He re-focussed. So, I was standing or sitting at times in front of him and he – it would appear that he was – would look at me and then his eyes would shift off center and then return back to the middle; basically had a head in the clouds kind of appearance. His head was circling loose on his shoulders, he had a foggy unfocused stare. The effects of alcohol appeared blatantly obvious on his physical and mental abilities.[9]

[78] Officer Thompson also said that Mr. Prosser's head was "sloshing around, sort of like the last pickle in the jar. His eyes are unfocused and he's not falling down drunk, which I've already said to the court, but there are signs of impairment,…"[10]

[79] The officer also said that when Mr. Prosser entered the breath room he did not go straight to the chair where he sits to take the breath tests. Instead, he went towards the officer's desk and then swung back towards the wall and the chair, which he found to be "a little unusual ... Most people walk along the wall straight to the chair and sit down".[11]

[80] The officer did not make any notes about these two instances.

[81] He conducted breath tests on Mr. Prosser and prepared the certificate of qualified technician, which indicates that his readings were 147 mg of alcohol per 100 mL of blood and 126 mg of alcohol per 100 mL of blood.

[82] During the breath test procedure he noted that Mr. Prosser's eyelids "were moving very slowly, very slow methodical movements, like they were heavy".

[83] Between the breath tests when Officer Thompson looked in on Mr. Prosser in the room where he was waiting for the second breath test, he saw him shadowboxing and then dropping to the floor and doing push-ups.

[84] When he came into the breath room for the second test he was out of breath and asked for water. Officer Thompson said that:

The rest of the physical appearances and behaviours continued to duplicate themselves as they had in the first test or during my dealings with him really. I did note that at times he's – he's very twitchy and has a lot of very quick movements and then like a switch he'll switch back and we'll have these sort of very low, slow diminished activity type of behaviours. And he would flip flop between being very hyper and quick action and then he'd slow down and would go into this ultraslow sort of very, I guess, diminished from the norm state.

[85] However, he conceded that the breath room video shows Mr. Prosser picking up a small object of the floor and placing it on his desk. He did not have any difficulty doing this. Later, he picks the object up off of the desk without any difficulty.

[86] The video also shows that Mr. Prosser was able to take his jacket from the back of a chair in the room and put it on, again without any difficulty.

[87] Mr. Prosser did not have any difficulty in providing his breath samples either.

[88] After viewing the video tape of the breath room procedures I do not share Officer Thompson's observations and conclusions about Mr. Prosser's demeanour. I grant that the officer was in the room with Mr. Prosser and I just saw the video tape, but the tape was of good quality and there is no evidence that it misrepresented what happened in the breath room.

[89] Mr. Prosser was perhaps more restless and talkative than other accused, but I did not perceive him as even lightly unsteady when he walked, or of almost stepping on his own feet. I did not note any slurring of his speech. I did not see his head circling loose on his shoulders, or that his head was sloshing around like the last pickle in the jar. Not only I did not notice these things; none of the other officers did either. This causes me to doubt Officer Thompson's evidence on these points. I do not accept it.

[90] The Crown introduced the certificate of qualified technician and the test record card through Officer Thompson. He gave these documents to the arresting officer. This ended his involvement in the case.

[91] Officer Thompson conceded that there was a mistake in his notes with regard to when the breath tests were administered because he took the time that he wrote in his notes from the video camera in the breath room, rather than from the "true" time on the Intoxilyzer instrument.

[92] That was all of the evidence on the Charter voir dire. I will now consider the evidence in light of the Charter issues.

Did the Police Breach Mr. Prosser's Rights Under ss. 9, 8, 10(b) of the Charter?

Section 9

a. The Community Complaint Regarding 1117 Danforth Avenue

[93] Ms. Kerr, defense counsel, submitted that the evidence regarding the community complaint that the officers were investigating is vague. Officer Prechotko was not sure when the complaint was made except for saying that it was in the previous spring. She could not say who the complainant was. There is no documentation about the complaint either. The address that they were investigating is not in either of the officers' zones. Although Officer Prechotko testified that it was in Officer Ingley's zone, he said that it was not.

[94] Ms. Kerr questions how Officer Prechotko could be sure that there were the problems at 1117 Danforth Avenue that she said they were investigating. According to Officer Prechotko she had received the information about problems at 1117 Danforth Avenue approximately five months before.

[95] I find that the evidence shows that the process that Officers Prechotko and Ingley described for the dissemination of complaints to the officers is sometimes formal (community complaint forms) and sometimes informal (word of mouth from community members and officers).

[96] I do not find any fault or deficiency in Officer Prechotko's testimony about there being problems reported at 1117 Danforth Avenue. Her description of a sometimes ad hoc, sometimes formal method of receiving and disseminating community complaints appears to accord with the reality of the situation. It made sense to me. I found her evidence about her knowledge of problems at 1117 Danforth Avenue to be credible. It was not shaken on cross-examination. She did not try to exaggerate the strength of the information in any way.

[97] Ms. Kerr questioned why the officers would not have checked the front door of 1117 Danforth Avenue if there were an issue with persons causing problems by going through the front and back doors of the building. Officer Prechotko testified that at first she and Officer Ingley went to the front, but there were no persons loitering there so they went to the back of the building to check. I see nothing wrong with this.

[98] In summation on this point, I find the evidence about there being complaints about the goings on at 1117 Danforth Avenue to be credible and I accept it. I find as a fact that there was a community complaint about problems at 1117 Danforth Avenue. Furthermore, I find as a fact that Officer Prechotko had knowledge of the complaint, which she passed on to Officer Ingley. This justified both officers being where they were to investigate the complaint and other possible infractions against the law. I find that they were not trespassers.

b. The Activity in Mr. Prosser's Truck When the Police Go By

[99] Ms. Kerr oppugned the officers' evidence that they saw a woman (Ms. Konasjenko) on her knees by the driver's seat leaning towards Mr. Prosser's lap as if a prostitution offence were occurring. Ms. Kerr pointed out that the officers were dressed in very bright, conspicuous clothing as they approached Mr. Prosser's truck. They had their mitres on that were connected to police dispatch. Is it believable that Mr. Prosser would engage in an illegal activity in these circumstances?

[100] This argument implies that Mr. Prosser saw or heard the officers coming towards him. One might say that this is plausible, but there is no evidence that he did. In addition, although it is possible, there is no evidence that at the time the officers approached Mr. Prosser radio calls were coming over their mitres that Mr. Prosser would have heard. In order to give weight to Ms. Kerr's arguments I would have to speculate that he saw or heard the officers coming, which I cannot do.

[101] Ms. Kerr pointed out that there is no evidence that Mr. Prosser had his pants down, was pulling them up, or that he was fidgeting with them in any way. In addition, there is no evidence regarding Ms. Konasjenko that would indicate that she was engaged in a sexual act with Mr. Prosser, for example, her wiping her mouth.

[102] This is a worthy argument, but its weakness is that it is premised on a sexual act actually taking place as the officers approached. It is entirely feasible that they could have been at the beginning stages of such an act before the more obvious indicators of mischief had a chance to appear.

[103] Judging from officers Prechotko and Ingley's perception of Mr. Prosser and Ms. Konasjenko's positions in the truck I find that they were justified in drawing an inference that it was very possible they were in the midst of engaging in an act of prostitution, at whatever stage of it.

[104] I would point out that had they wanted to strengthen their case the officers could have easily said that they saw Mr. Prosser jiggling around with his pants. The fact that they did not supports their credibility.

[105] Therefore, I do not think that this circumstance damages the officers' credibility. There evidence was not shaken except on the basis of speculation that Mr. Prosser would have seen or heard them coming. I cannot decide the issue on that basis. In addition, there is not sufficient evidence on which I could find that the officers are lying. Consequently, I accept that they saw what they said they saw.

[106] Ms. Kerr also argued that it was unbelievable that Mr. Prosser and Ms. Konasjenko would be involved in a sexual act in a well-lit parking lot. It might not be the most prudent thing to do, but I do not think that it is unbelievable. The courts are full of persons who were caught doing reckless things.

[107] On another point, Officer Prechotko said that she rode by Mr. Prosser's truck on the driver's side. Officer Ingley said that they both drove by on the passenger side. I do not think that this affects their credibility as to what they saw. It is a minor difference and it does not concern the main issue of what they saw.

[108] Officer Prechotko testified that when she and Officer Ingley got back to the truck, the woman, Ms. Konasjenko, was seated in the passenger's seat. Mr. Prosser was sitting in the driver's seat. Officer Ingley testified that Ms. Konasjenko was still on her knees over the console facing Mr. Prosser when they came back to the truck. This was not in his notes. I find that this is a minor point that does not affect the officers' credibility on the other matters discussed above.

[109] In one sense, this inconsistency can be looked at as an indication that the officers did not collude to create a stronger case against Mr. Prosser. This tends to bolsters their credibility.

[110] Ms. Kerr submitted that Officer Prechotko was not forthcoming about when she first called dispatch about Mr. Prosser. She said in her submissions that:

In addition, what the police didn't tell you – Petchotko didn't tell you until she was confronted with it was before she approaches the vehicle she's already called dispatch. She's already called dispatch and she was cross-examined on this. She's already called dispatch with the license plate of the car and she finds out the registered owner. She says in her evidence, she didn't get the license plate 'til later. And then when she's confronted in court with this call, all of a sudden her memory gets better and in re-examination she says, oh, I made that call at the back of the truck, when that's not what she testified to in-chief.[12]

[111] It is true that Officer Prechotko did not mention in chief that she called dispatch before she approached Mr. Prosser's truck. This was clarified in cross-examination and in re-examination. I do not see this as a crack in her credibility, however. There is no evidence that anything turned on when she called dispatch.

[112] In summation on points a. and b., I find that the evidence is sufficient to show that the officers had a legitimate reason to investigate a potential prostitution offence in Mr. Prosser truck.

c. Was There a Detention, and if so, When Did it Commence?

[113] After initially investigating the possibility of an act of prostitution, the officers dismissed that as a possibility and turned their minds to a potential offence of intimate partner violence. This was based on Mr. Prosser's statement that he and Ms. Konasjenko were having a heated argument about her children.

[114] Ms. Kerr pointed out that there was no obvious evidence of physical abuse. However, that does not mean that threats could not have been made. Threats to cause death or bodily harm are common in situations of intimate partner violence. In addition, it is common that victims of intimate partner violence try to hide the fact from the police, which requires the police to engage in further investigation.

[115] Therefore, I find that even in the absence of indicators of physical violence, officers Prechotko and Ingley were entitled to initiate an investigative detention for the purpose of ascertaining if any offence involving domestic violence had taken place.

[116] I find that the evidence shows that Officer Ingley detained Mr. Prosser when in response to Mr. Prosser's request to leave the scene he told him that he could not leave because they were investigating whether there was a "domestic related incident". Given this finding, I do not have to discuss the other indicia of a detention that are present.

d. Was the Detention Arbitrary?

[117] The applicant concedes that officers Prechotko and Ingley were acting within their general duties imposed by stature or common law of preserving the peace, preventing crime and protecting life and property.[13]

[118] I agree and would add that as I found above, they were acting in response to community complaints regarding 1117 Danforth Avenue and its immediate environs.

[119] Next, I must determine if the officers' actions accorded with the dictates of R. v. Mann[14] for investigative detentions. The court stated in paragraph 34:

… investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference …

[120] For the reasons stated above, I find that the officers' interpretation of the situation in Mr. Prosser's truck was "premised upon reasonable grounds". Therefore, I find that at their belief was justified in initiating an investigative detention to determine if a prostitution offence was, or had just taken place.

[121] Secondly, for the reasons explained above, I find that as the situation developed the officer's initiation of an investigative detention of Mr. Prosser to investigate a potential domestic violence offence was also "premised upon reasonable grounds".

[122] In both instances, investigation of a prostitution offence and of an intimate partner violence offence, I find that the officers were acting reasonably and engaging in a bona fide investigation of the circumstances that presented themselves to them. Based on all of the circumstances, I do not agree that they were simply engaged in a fishing expedition.

[123] In R. v. Cayer[15], a case that involved arrests for drinking and driving offences, the Ontario Court of Appeal relied on the following definition of "arbitrary" from Black's Law Dictionary, 5th ed. (1979), p. 96:

… in an "arbitrary" manner, as fixed or done capriciously or at pleasure. Without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic ... Without fair, solid, and substantial cause; that is, without cause based upon the law ... not governed by any fixed rules or standard. Ordinarily, "arbitrary" is synonymous with bad faith or failure to exercise honest judgment and an arbitrary act would be one performed without adequate determination of principle and not one founded in nature of things ...

[124] The court stated at paragraph 38 that "In our view, an arbitrary detention for the purpose of these appeals is a detention which is capricious, despotic or unjustifiable". This definition was followed in R. v. Rowson.[16]

Disposition of the s. 9 Charter Application

[125] For all of the above reasons, I find that the detention of Mr. Prosser was not arbitrary. That part of the Charter application is dismissed.

Section 8

The Flashlight Search

[126] I find that the shining of the flashlight constituted a search in these circumstances. Officer Ingley testified that while he was questioning Mr. Prosser he was shining his flashlight into the truck in order to see inside of the truck to ensure that there were no safety concerns for the officers. Secondly, he wanted to see Ms. Konasjenko's face better to see if she was crying.

[127] Ms. Kerr agrees that when Officer Ingley shone his flashlight inside Mr. Prosser's truck he was acting within the police duty to protect life and safety. However, she submits that this search was not reasonably necessary.

[128] In R. v. MacDonald[17] the court stated that once it is established that the police action "falls within the general scope of a police duty" the court must determine "whether the action constitutes a justifiable exercise of powers associated with the duty".

[129] The court set out the following test to determine whether "a safety search is reasonably necessary, and therefore justifiable":[18]

1. the importance of the performance of the duty to the public good (Mann, at para. 39);
2. the necessity of the interference with individual liberty for the performance of the duty (Dedman, at p. 35; Clayton, at paras. 21, 26 and 31); and
3. the extent of the interference with individual liberty (Dedman, at p. 35).

If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute an "unjustifiable use of ... police power[s]" (Dedman, at p. 36). If the requirements of both stages of the Waterfield test are satisfied, the court will then be able to conclude that the search in question was authorized by law.

[130] In the case at bar, the evidence is that the area in which Mr. Prosser parked his truck was well-lit. When officers Prechotko and Ingley passed by the truck they were able to easily see inside the truck.

[131] In theory, officer safety is a reasonable concern whenever an officer approaches two individuals in a truck parked in a laneway in a neighborhood known for illegal activity. But this was a well-lit area and the officers had already had a brief look inside the truck when they passed by. They did not have any problem discerning what was inside the truck.

[132] There had to be more than speculation about dangers lurking that could endanger the officers in order to justify this flashlight search. There is no evidence that parts of the interior of the truck that reasonably may have concealed dangerous objects were hidden from view. Moreover, there is no evidence that would indicate any danger from Mr. Prosser, Ms. Konasjenko or from any other source within Mr. Prosser's truck.

[133] Therefore, I find that a "safety search" was not reasonably necessary in these circumstances.

[134] With regard to the second reason for the flashlight search; namely, to determine if Ms. Konasjenko was crying, I find that the area was sufficiently well-lit that this was not necessary. Officer Prechotko said that when she passed by the truck she could tell that Mr. Prosser had a tan. Surely, then, Officer Ingley would be able to tell without the help of his flashlight if Ms. Konasjenko were crying.

[135] I find that it was not reasonably necessary for Officer Ingley to shine his flashlight inside of Mr. Prosser's truck to determine if Ms. Konasjenko was crying.

[136] I find that Officer Ingley used the flashlight more to vex and rattle Mr. Prosser than to conduct a legitimate search. Shining the light in his eyes is an indication of this. The area was well-lit. There is no evidence to justify the need to use a flashlight to search within the truck.

[137] Therefore, I find that the flashlight search breached Mr. Prosser's rights under s. 8 of the Charter.

Reasonable and Probable Grounds to Arrest Mr. Prosser

[138] Ms. Kerr maintained that the police did not have reasonable and probable grounds to arrest Mr. Prosser for impaired care or control. Therefore, the subsequent search by requiring him to provide breath samples breached his rights under s. 8 of the Charter.

[139] The following are the salient points of evidence regarding this issue prior to Mr. Prosser's arrest.

1. Mr. Prosser was quite upset that the police were questioning him and not allowing him to leave the scene. When he argued with them he was very animated.

2. Officer Ingley shone his flashlight in Mr. Prosser's eyes while he was questioning him. Mr. Prosser squinted at the light. Officer Ingley said that his eyes looked watery or glazed. Officer Prechotko testified that his eyes were bloodshot and glossy.

3. While he was questioning Mr. Prosser, Officer Ingley got closer to the inside of the truck. He smelled what appeared to be the odour of alcohol coming from inside of the truck, but he did not know exactly where the odour was coming from.

4. There was a bottle of liquor in the Console next to Mr. Prosser. It was three quarters full.

5. Mr. Prosser denied drinking any alcohol that night.

6. Officer Prechotko said that at the point when she separated Mr. Prosser from Ms. Konasjenko she did not have any grounds on which to request a roadside screening breath test. Nor did Officer Ingley ask her to request one.

7. Mr. Prosser performed the following physical actions without any difficulty:

   • (a) he reached for the keys in the ignition and turned off the radio;
   • (b) he got out of the truck;
   • (c) after he got out of his truck he did not sway when he was standing speaking with Officer Ingley;
   • (d) Mr. Prosser retrieved his wallet to get his driver's license;
   • (e) Mr. Prosser spoke without any difficulty.

8. Mr. Prosser's face was red, but Officer Ingley was not sure if it was because he was angry.

9. Mr. Prosser was swearing and speaking in a loud voice. He was waving his arms around.

10. It appeared that when Mr. Prosser was looking for his license in his wallet he could not focus on the task. He took a big sigh to calm himself and then produced his license.

11. Mr. Prosser's movements were slow, steady and very deliberate when he was retrieving his license from his wallet. However, Officer Ingley did not note that any of his other actions were slow and deliberate.

12. Immediately after Officer Ingley arrested Mr. Prosser he walked from his truck to the police cruiser without difficulty.

[140] I will not discuss the evidence with regard to Mr. Prosser's behaviour after he was placed in the police cruiser at the scene because it is too far removed from the point at which Officer Ingley said that he formed his reasonable and probable grounds to arrest him.

[141] In R. v. Storrey[19] the court held that a police officer must have subjective reasonable and probable grounds to arrest a citizen. In addition, these grounds must be "justifiable from an objective point of view":

… the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.

[142] With regard to the above points I find it curious that Officer Ingley did not smell the odour of an alcoholic beverage on Mr. Prosser's breath while Mr. Prosser was inside of his truck and he was speaking to him. Officer Ingley said that he shone his flashlight in Mr. Prosser's eyes at this point. Therefore, he must have been pretty close to him. In addition, Mr. Prosser was quite agitated and was speaking a lot in a loud voice so there was plenty of opportunity to smell his breath.

[143] Another point that causes me concern is that although Officer Ingley said that Mr. Prosser's movements with regard to retrieving his license were slow and deliberate he did not make the same observation with regard to any of his other movements, for example, retrieving his wallet, turning off the ignition of the truck, getting out of the truck or walking.

[144] He said that it was because he was not paying any particular attention to Mr. Prosser's other movements. I find this hard to believe because it is clear from Officer Ingley's evidence that he was quite concerned with the way Mr. Prosser was acting and that Mr. Prosser intimidated him. I think that it is more that Mr. Prosser's other movements did not accord with Officer Ingley's desired conclusion that he had reasonable and probable grounds to believe that Mr. Prosser's ability to drive a motor vehicle was impaired by alcohol, so he ignored them.

[145] This causes me to doubt his evidence that Mr. Prosser's movements were slow and deliberate when he produced his license.

[146] I find that the evidence shows that Mr. Prosser's movements and speech were not indicative of a person whose ability to operate a motor vehicle was impaired by alcohol. All of the circumstances had be taken into consideration by Officer Ingley before he arrested Mr. Prosser; not just the ones that incriminated him.

[147] In Chartier v. Quebec (Attorney General)[20] the court stated that:

For a peace officer to have reasonable and probable grounds for believing in someone's guilt, his belief must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing not reliable.

[148] In R. v. Cooper[21] Mr. Justice MacDonell, as he then was, found that this holding in Chartier makes it,

clear that a review of whether a peace officer's belief was based on reasonable and probable grounds involves more than a search for some circumstance which might be said to offer support for the belief. It is the totality of the circumstances known to the officer - those which undermine the belief as well as those which support it - which must be assessed to determine if the requirement of reasonable and probable grounds has been met.

[149] The odour of an alcoholic beverage on the breath and bloodshot, glassy or glossy eyes can be indicia of the consumption of alcohol, but they are not necessarily indicia of a person's ability to drive a motor vehicle being impaired by alcohol.

[150] Likewise, a person's boisterous demeanour can be indicative of impairment by alcohol, but in the case at bar there is another very good explanation for Mr. Prosser's behaviour: he was extremely upset that the police were questioning him and detaining him and Ms. Konasjenko because he felt that it was unjustified.

[151] Apart from conceding that Mr. Prosser's red face could have been from him being upset, I find that Officer Ingley's evidence shows that he did not take into consideration the totality of the circumstances. He focused only on the incriminating circumstances. An example of this is his evidence that aside from how Mr. Prosser retrieved his license he did not pay attention to his other actions.

[152] I thought that a particularly important circumstance was that when Mr. Prosser was producing his license to Officer Ingley, he had the wherewithal to pause in the midst of his upset, take a deep breath and calm himself. This is indicative of someone who is being level headed, not of someone whose ability to drive is impaired by alcohol.

[153] I grant that perhaps Officer Ingley had the subjective belief that Mr. Prosser's ability to drive a motor vehicle was impaired by alcohol. However, I find that his belief was not justified on an objective basis.

Disposition Regarding s. 8

[154] For the reasons stated above, I find that Officer Ingley breached Mr. Prosser's rights under s. 8 of the Charter by conducting a flashlight search of this truck.

[155] In addition, I find that Officer Ingley did not have the requisite reasonable and probable grounds to arrest Mr. Prosser for impaired care or control. Therefore, the subsequent taking of samples of his breath violated Mr. Prosser's rights under s. 8 of the Charter.

Section 10(b)

Delay in Giving Rights to Counsel

[156] Above, I found that Officer Ingley detained Mr. Prosser when in response to Mr. Prosser's request to leave the scene he told him that he could not leave because they were investigating whether there was a "domestic related incident". This was an investigative detention. It occurred very soon after Officer Ingley rode by Mr. Prosser's truck at 19:01 hours. It was no later than 19:04 hours.

[157] Officer Prechotko said that she heard Officer Ingley giving Mr. Prosser his rights to counsel at 19:10 hours. But as I explained above, her evidence on this point was very shaky and confusing. I reject it.

[158] I prefer Officer Ingley's evidence that at 19:15 hours he put Mr. Prosser into the police cruiser and read him his rights to counsel. He had notes about this and his evidence on this point was not undermined in anyway.

[159] Therefore, I find as a fact that it took Officer Ingley between 11- and 14 minutes to read Mr. Prosser his rights to counsel after he initially detained him.

[160] In R. v. Suberu[22] the court held:

The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention … It is our view that this question must be answered in the affirmative. … from the moment an individual is detained, s. 10(b) is engaged and, … the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

[161] Section 10(b) of the Charter states that "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right".

[162] Suberu held that "the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention".[23]

[163] It is clear that Officer Ingley did not comply with the dictates of s. 10(b) of the Charter, nor of the Supreme Court of Canada. There is no evidence that would justify the delay in giving Mr. Prosser his rights under s. 10(b). Therefore, I find that Officer Ingley breached Mr. Prosser's right to counsel.

Did Officer Ingley Breach Mr. Prosser's Right to Counsel by Asking Him Questions After Mr. Prosser Said That He Wanted to Speak to a Lawyer?

[164] Officer Ingley's evidence is that after he administered the caution to Mr. Prosser, he said that he wanted to speak to a lawyer. Then, Officer Ingley asked him "do you wish to say anything in answer to the charge?" In Officer Ingley's words, Mr. Prosser "was continually talking about what had happened" (emphasis added).

[165] One might argue that Mr. Prosser talked about the charge before Officer Ingley cautioned him as well as after the caution so it did not matter that Officer Ingley asked that question. However, the police's duty in these situations is clear. In R. v. G.T.D.[24] the Supreme Court of Canada stated:

The right to counsel under s. 10(b) of the Charter obliges police to "'hold off' from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel" (R. v. Prosper, [1994] 3 S.C.R. 236 (S.C.C.), at p. 269). The first issue in this appeal is whether the question "Do you wish to say anything?", asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to "hold off". We are all of the view that it did, because it elicited a statement from G.T.D.

[166] Mr. Prosser was loquacious from the beginning of his encounter with the police. Perhaps the police could not prevent Mr. Prosser from speaking about the circumstances. This does not, however, allow them to elicit statements about the charge.

[167] The Supreme Court decided G.T.D. after the police charged Mr. Prosser. One might say that this excuses Officer Ingley's asking him if he had anything to say after he said that he wanted to speak to a lawyer.

[168] Perhaps the discrete issue of whether asking if an accused wishes to say anything after they are cautioned and expressed the desire to speak to a lawyer was not decided until the decision in G.T.D., however, the court noted in G.T.D. that as far back as 1994, the Supreme Court decided in Prosper that "s. 10(b) of the Charter obliges police to "'hold off' from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel".

[169] Therefore, in the circumstances of the case at bar I find that Officer Ingley breached Mr. Prosser's right to counsel when, after he said that he wanted to speak to a lawyer, he asked him if he had anything to say in answer to the charge before he had the opportunity to speak with his lawyer.

Did the Police Breach Mr. Prosser's Rights Under s. 10(b) by Not Re-Advising Him of His Rights to Counsel With Regard to the Charge of Possession of Cocaine?

[170] Officer Firth testified that when he was taking Mr. Prosser to the police station for his breath tests, he received a radio call telling him that Mr. Prosser was arrestable for possession of cocaine. He also asked Mr. Prosser questions about a recognizance that he thought he was on. Mr. Prosser responded to his questions.

[171] The in-car camera video shows that Officer Firth told Mr. Prosser that the officers on scene at the roadside were with his truck and found evidence of possession of cocaine. He further told Mr. Prosser that in addition to being arrested for impaired care or control, he was being arrested for possession of cocaine.

[172] This is a very passive way of putting it: that he was "being arrested" for possession of cocaine. Which officer was arresting him? It looks like Officer Firth was arresting him, although his words are not the usual words that officers use when arresting a person.

[173] Defence counsel asked Officer Firth "so, Mr. Prosser's potential jeopardy in police custody changed with the fact that he was now arrested or arrestable for possession of cocaine, had it not?"[25] The officer said that it had.

[174] However, defence counsel's question is ambiguous: is he "arrested" or just "arrestable"? Does Officer Firth's response mean that Mr. Prosser's jeopardy increased because he was now liable "to be" arrested for possession of cocaine, or because he "had been" arrested for possession of cocaine, or because he was "actually arresting" him in the cruiser?

[175] It makes a difference because s. 10(b) says that "on arrest" the police must give a citizen his rights to counsel. It does not say "upon being arrestable" for an offence the police must give a person their right to counsel.

[176] The ambiguity continues when Officer Firth takes Mr. Prosser into the police station for booking. When they enter the building he reads a sign to him that tells him that he is being video and audio taped. The officer tells Mr. Prosser that he is going to read him his rights to counsel and that "I am arresting your for impaired and care and control".

[177] This is a poorly worded statement. It sounds like two different charges. In addition, Officer Ingley had already arrested Mr. Prosser for impaired care or control. In any case, Officer Firth did not mention that Mr. Prosser was arrested for possession of cocaine, which is curious given what he had just told him in the police cruiser on the way to the station.

[178] It appears, however, that Officer Firth remembered about the cocaine charge when he presented Mr. Prosser before the booking-in sergeant. He told the sergeant that Mr. Prosser had been arrested for impaired care and control as well as possession of cocaine.

[179] After the booking-in procedure, Officer Firth took Mr. Prosser to the breath room for his breath samples. He told Officer Thompson, the Intoxilyzer technician, that Mr. Prosser was facing a charge of possession of cocaine.

[180] Despite all of this confusion, when I consider all of the circumstances, I find that Officer Firth arrested Mr. Prosser for possession of cocaine in the police cruiser on the way to the police station by telling him that he was "being arrested" for possession of cocaine.

[181] As imprecise and awkwardly worded as this arrest was, I find that it meant that Officer Firth was arresting Mr. Prosser for possession of cocaine based on the information that he had just received from the officers at the roadside scene. It is clear that neither Officer Prechotko nor Officer Ingley made this arrest because Officer Ingley found the cocaine after Officer Firth had taken Mr. Prosser away from the scene. Therefore, there is no one else who could have arrested him for possession of cocaine.

[182] Regarding giving Mr. Prosser his rights to counsel on the cocaine charge, Officer Firth told the booking-in sergeant that Mr. Prosser had been read his rights to counsel. That was correct with regard to the impaired care or control charge. But there is no evidence that any officer read Mr. Prosser his rights to counsel on the possession of cocaine charge.

[183] Officer Firth did not give Mr. Prosser his rights to counsel when he arrested him for possession of cocaine in the cruiser on the way to the police station. Of course it was impractical for him to read him his rights from his memo book because he was driving, but he did not say anything about rights to counsel, not even in a paraphrased form. He could have given him his rights to counsel on the cocaine charge when he read him his rights for the impaired care or control charge at the entrance of the police station, but he did not.

[184] Since I find that Officer Firth arrested Mr. Prosser for possession of cocaine, but did not read him his rights to counsel, I find that Officer Firth breached Mr. Prosser's rights to counsel.

Disposition Regarding s. 10(b)

[185] For the reasons stated above, I find, first, that Officer Ingley breached Mr. Prosser's rights to counsel by delaying to give them to him after he detained him.

[186] Second, I find that Officer Ingley breached Mr. Prosser's rights to counsel by asking if he had anything to say in answer to the charge of impaired care or control.

[187] Third, I find that Officer Firth breached Mr. Prosser's rights to counsel by not giving him his rights to counsel after he arrested him for possession of cocaine.

Should the Evidence be Excluded Under s. 24(2) of the Charter?

[188] In R. v. Grant[26] the court stated that "When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits".

Seriousness of the Charter-Infringing State Conduct

[189] I must "consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter".[27]

[190] I have to determine whether the Charter breaches were "inadvertent or minor" or "wilful or reckless". Minor breaches will "minimally undermine public confidence in the rule of law". Whereas, serious breaches "will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute".[28]

[191] I found that the police breached Mr. Prosser's rights under s. 8 in two ways. First, the flashlight search breached Mr. Prosser's rights under s. 8 of the Charter. I found that Officer Ingley used the flashlight more to vex and rattle Mr. Prosser than to conduct a legitimate search. Shining the light in his eyes is an indication of this. The area was well-lit. There is no evidence to justify the need to use a flashlight to search within the truck.

[192] Second, I found that Officer Ingley did not have reasonable and probable grounds to arrest Mr. Prosser for impaired care or control.

[193] I found that Officer Ingley ignored many indicia of Mr. Prosser's behaviour that militated against his opinion that Mr. Prosser's ability to drive a motor vehicle was impaired by alcohol. He focused only on a couple of factors that justified the conclusion that he was impaired.

[194] The breaches of Mr. Prosser's rights under s. 8 were serious. First, there were two breaches. The first one with the flashlight could be characterized as relatively minor, but it had a tinge of meanness because Officer Ingley deliberately shone a bright flash light directly in Mr. Prosser's eyes for no reason.

[195] The second breach was not "inadvertent or minor". It was reckless because Officer Ingley proceeded on insufficient grounds to arrest Mr. Prosser. In these circumstances, he should have obtained an approved screening device (ASD) and administered a roadside breath test to Mr. Prosser. There was no reason why he could not have easily obtained an ASD. This situation is precisely one for which the ASD is meant and is so useful. Had he done this it would have avoided him arresting Mr. Prosser without reasonable and probable grounds.

[196] I find that this factor favours exclusion of the evidence.

Impact on the Charter-Protected Interests of the Accused

[197] Under this heading I am required to evaluate "the extent to which the breach actually undermined the interests protected by the right infringed".[29] To determine the seriousness of the breach I must consider "the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests".[30]

[198] Mr. Morley, the Crown, cited R. v. Jennings,[31] to support his argument that the taking of breath samples is a minimally intrusive procedure that has little impact on the Charter-protected interests of the accused.

[199] In Jennings, the court rejected the line of authorities that sprung from R. v. Au Yeung,[32] which hold that "the seriousness of the impact of a s. 8 breach in a breath sample case should not focus only on the immediate impact of providing a breath sample, but on the overall impact on the accused of the breach, including such matters as detention in the back of a police cruiser, transportation to the police station for breath-testing, and subsequent detention at the police station".[33]

[200] Jennings found that "it was an error … not to have found the impact of the breach to have been minimal, favouring admission".[34] The court cited R. v. Guenter,[35] where Brown J.A. noted at paragraph 98 that "[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity: Grant, at para. 111".

[201] In Grant, the court stated in paragraph 111:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[202] In Grant, Jennings and Guenter the courts' statements about the unobtrusiveness of taking breath samples were made as obiter dicta. Of course, even obiter dicta from the Supreme Court and the Court of Appeal is a very weighty pronouncement. I follow their observations that the taking of breath samples involves but a minimally intrusive procedure with respect to the accused's bodily integrity.

[203] But I note that the case at bar is distinguishable from Grant, Jennings and Guenter. Grant was not a breath sample case. In Jennings and Guenter there were no Charter breaches.

[204] In the case at bar there are multiple Charter breaches. This takes the case out of the Grant, Jennings and Guenter realm in terms of deciding the issue of whether to exclude the breath sample evidence against Mr. Prosser.

[205] I find that because of the multiple breaches of Mr. Prosser's Charter rights the second factor favours exclusion of the evidence.

Society's Interest in an Adjudication on the Merits

[206] Grant pointed out that "Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion". Consequently, I must "consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence".[36] (emphasis in original)

[207] The reliability of the evidence is "an important factor in this line of inquiry". The exclusion of unreliable evidence would not harm the truth-seeking function of a trial. However, "exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute".[37]

[208] Grant held that "The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial".[38]

[209] Further, I must consider whether excluding the evidence would be fatal to the Crown's case. "The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution".[39]

[210] The court summarized the judge's role as having to "weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible".[40]

[211] In the case at bar there is no doubt that the exclusion of the evidence would be fatal to the Crown's case. This factor favours inclusion of the evidence. However, there are multiple breaches. Only one of them can be characterized as minor.

[212] In R. v. McGuffie,[41] Mr. Justice Doherty stated that "If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility".

[213] I find that in the case at bar, the first and second inquiries favour exclusion strongly. Accordingly, on balance, I find that the admission of the evidence in these circumstances would bring the administration of justice into disrepute. Therefore, the evidence is excluded. There being no other evidence against Mr. Prosser, he is acquitted of all charges.

Released: October 5, 2018

Signed "Justice J.W. Bovard"

Footnotes

[1] Transcript, April 13, 2018, page 17, lines 27-29

[2] Transcript, April 12, 2018, page 28, lines 3-7

[3] Transcript, April 12, 2018, page 118, lines 28-32; page 119, lines 1-32; page 120, lines 1-21; page 123, lines 28-32; page 124, lines 1-16

[4] Transcript, April 13, 2018, page 4, lines 1-4

[5] Ibid. page 46, lines 20-29

[6] Transcript, August 8, 2018, page 26, lines 2-17

[7] Ibid. page 38, lines 16-21

[8] Transcript, August 8, 2018, page 55, lines 14-17

[9] Transcript, August 8, 2018, page 55, lines 16-27

[10] Ibid. page 77, lines 1-5

[11] Ibid. page 77, lines 9-18

[12] Transcript, August 9, 2018, page 62, lines 28-32; page 63, lines 1-10

[13] Factum, para. 30

[14] 2004 SCC 52

[15], [1988] O.J. No. 1120

[16] 2015 ABCA 354, [2016] 4 W.W.R. 483, (Alta. C.A.)

[17] 2014 SCC 3, paras. 35, 36

[18] Ibid. para. 37

[19], [1990] 1 S.C.R. 241, para. 17

[20], [1979] 2 S.C.R. 474, para. 73

[21] [1993] O.J. No. 501

[22] 2009 SCC 33, para. 2

[23] Ibid. para. 42

[24] 2018 SCC 7, para. 2

[25] Transcript, August 8, 2018, page 48, lines 8-13

[26] 2009 SCC 32, [2009] S.C.J. No. 32, para. 71

[27] Ibid. para. 73

[28] Ibid. para. 74

[29] Ibid. para. 76

[30] Ibid. para. 77

[31] 2018 ONCA 260, para. 32

[32] 2010 ONSC 2292

[33] Jennings, para. 4

[34] Ibid. para. 32

[35] 2016 ONCA 572

[36] Grant, para. 79

[37] Ibid. para. 81

[38] Ibid. para. 82

[39] Ibid. para. 83

[40] Ibid. para. 86

[41] 2016 ONCA 365, para. 63