Court Information
Ontario Court of Justice
Date: October 17, 2018
Court File No.: Brampton 15-12704
Parties
Between:
Her Majesty the Queen
— and —
Sebastian Camargo
Before the Court
Justice: M.M. Rahman
Reasons for Judgment released on: October 17, 2018
Counsel
For the Crown: Tony Sferruzzi
For the Defendant: Martin Montes
RAHMAN, J.:
1. Overview
[1] The defendant, Sebastian Camargo, is charged with impaired driving and driving with excess blood alcohol (over 80). Peel Regional Police Cst. Matthew Strain was dispatched to Mr. Camargo's neighbourhood to investigate a possible impaired driver who had run into a street sign. A neighbour, who had seen an orange car against the street sign, directed Cst. Strain to a nearby driveway where he believed he saw the car.
[2] Cst. Strain pulled behind the orange car, while Mr. Camargo was moving his car back and forth in his driveway. When he approached the driver's side, Mr. Camargo did not respond at first. When Mr. Camargo left his car and walked to the police cruiser, he was unsteady on his feet as he walked to the police cruiser. Cst. Strain also noticed that he smelled of alcohol.
[3] Mr. Camargo was arrested for impaired driving and taken for Intoxilyzer tests. While he was being booked, he was asked to remove his undershirt and some thread bracelets he was wearing. When he was unable to remove one of his bracelets, the police cut them off his wrist. Mr. Camargo was also taken into a private room where he said he was asked to pull down his shorts, exposing his underwear. Mr. Camargo also said that he did not understand his right to counsel, nor did he understand what duty counsel was telling him during his consultation with counsel.
[4] Mr. Camargo brought an application under s. 24(1) of the Canadian Charter of Rights and Freedoms, requesting a stay of proceedings. He argued that the fact that he was strip searched, combined with the breach of his right to counsel, entitled him to a stay. Alternatively, Mr. Camargo sought exclusion of evidence, including his Intoxilyzer results and the breath test room video taken at the police station.
[5] Crown counsel acknowledged that Mr. Camargo's rights had been breached by an unconstitutional strip search, and that evidence of his Intoxilyzer results ought to be excluded. However, the Crown did not concede that Mr. Camargo's s. 10(b) rights had been breached. The Crown further argued that the strip search in this case was not serious enough to warrant a stay of proceedings, and that Mr. Camargo should be found guilty of impaired driving.
[6] These reasons explain why I dismiss Mr. Camargo's request for a stay of proceedings, but grant him the alternative relief of excluding his Intoxilyzer results under s. 24(2) of the Charter. While success on the Charter application results in the dismissal of the over 80, in my view there is sufficient remaining evidence to find him guilty of impaired driving.
2. The Charter Application
[7] At the outset of the trial, Mr. Camargo's counsel, Mr. Montes, set out the following grounds for his Charter application:
(1) A violation of s. 8 because the police lacked reasonable grounds to arrest Mr. Camargo;
(2) A violation of s. 8 because of Mr. Camargo was strip searched and because of the manner of the search incident to arrest; and
(3) A violation of s. 10(b) of the Charter because:
(a) Mr. Camargo was not advised of his right to counsel without delay.
(b) The police did not hold off questioning Mr. Camargo before he had a chance to speak to duty counsel.
(c) The police ought to have arranged for Mr. Camargo to have an interpreter or to speak to a Spanish-speaking lawyer.
[8] In oral argument, Mr. Camargo's lawyer, Mr. Montes, did not pursue his allegation that police lacked reasonable grounds to arrest his client, and that the police did not read him his right to counsel without delay. Nonetheless, because he raised them in his application, and did not specifically abandon them, I will address them below.
3. Section 8
3.1. There Were Sufficient Grounds to Arrest Mr. Camargo
[9] I cannot accept the submission that Cst. Strain did not have reasonable grounds to arrest Mr. Camargo. Cst. Strain believed that Mr. Camargo had struck a street sign shortly before he dealt with him. More importantly, Mr. Camargo was somewhat unresponsive initially to Cst. Strain. He was also unsteady on his feet, smelled of alcohol, and had difficulty walking down the driveway. In my view, Cst. Strain had ample grounds to arrest Mr. Camargo.
3.2. The Strip Search was Unconstitutional
[10] As mentioned above, Crown counsel conceded that Mr. Camargo was unconstitutionally strip searched. That was a wise concession. On the record before me, the strip search was not justified.
[11] Mr. Camargo was wearing a soccer jersey and a sleeveless undershirt underneath it. Cst. Strain explained that prisoners who are put into cells are allowed to wear only one layer of clothing. To that end, Mr. Camargo was asked to remove one of his two top layers. The booking video shows Cst. Reis motioning for Mr. Camargo to remove one of the top layers. Following his direction, Mr. Camargo removed his soccer jersey and then his undershirt. Mr. Camargo appears bare-chested on the video and is standing in front of the booking desk.
[12] Not long after he removed his undershirt, Mr. Camargo was taken into a private room to allow him to go down to one layer below his waist. Mr. Camargo went into the room wearing grey track pants. When he emerged from the room, he was wearing red shorts. He also appeared to be pulling up his shorts as he walked back to the booking desk. Mr. Camargo testified that he was wearing underwear under his shorts and that, when he was in the room, he was asked to pull his shorts down to his knees exposing his underwear. He said he was then asked to turn around while his underwear was exposed. This evidence stood uncontradicted.
[13] Cst. Strain testified that he was at the door while this occurred but could not recall what happened in the room. He did not make any notes of what took place in the room.
[14] Because this strip search was a warrantless search, the Crown bore the onus of proving that it complied with s. 8. The Crown did not call the officer, Cst. Reis, who appears to have made the decision to conduct the search in the private room. Crown counsel said he was satisfied that I decide the case without Cst. Reis' evidence.
[15] A strip search includes viewing a person's undergarments. A strip search can only be justified if there are reasonable grounds justifying it. [1]
[16] In this case, the Crown established no justification for a strip search. Although the Crown did not agree that Mr. Camargo removing his undershirt in the booking area amounted to a strip search, I find that it did. Mr. Camargo ought not to have been told to remove his top and be bare chested in the booking area. He ought to have been afforded privacy. Moreover, as the Crown did concede, there was no justification for asking Mr. Camargo to pull down his shorts and expose his underwear, even when he was in a private room. The pre-conditions from Golden to justify a strip search were not present here. The strip search violated s. 8.
3.3. The Search Incident to Arrest
[17] Mr. Camargo argued that, in addition to the strip search, the way he was searched in the booking area was unreasonable. Specifically, he took issue with the police forcibly removing a thread bracelet from his wrist.
[18] While in the booking area, Mr. Camargo was asked to remove any jewellery he was wearing. Cst. Strain explained that all prisoners are asked to remove any type of jewellery before being placed into the cells. The booking video shows Mr. Camargo, with great effort, removing one of his bracelets from his left wrist. When he was unable to remove the same type of bracelet from his right wrist, Cst. Strain used a knife to cut it off. The knife was sharp on one side, and dull on the other side that was against Mr. Camargo's skin. Mr. Camargo struggled while the bracelet was being cut off, and was restrained while Cst. Strain cut off the bracelet.
[19] The police noticed that Mr. Camargo had a similar thread anklet on his ankle. They did not have him remove it, nor did they insist that it be removed.
[20] Cst. Strain explained in cross-examination that any items a detained person brings into the cells can be a hazard, and that the jewellery is removed for both officer safety and the detainee's safety. Cst. Strain also explained that it is up to the cells officer to determine if an item must be removed according to the police's policy. Cst. Strain thought Cst. Reis requested his assistance to get the bracelets off, so Cst. Strain retrieved the knife for that purpose.
[21] Mr. Camargo testified that the bracelets had a great deal of significance to him. Mr. Camargo's mother had tied the thread bracelets on him before he left Columbia. He promised her that he would not remove them until he saw her again.
[22] Crown counsel argued that the removal of jewellery, including bracelets, was necessary for safety reasons. He argued that the bracelets could pose a safety hazard, because they could potentially have been concealing something that could pose a risk. Crown counsel urged me not to second guess the Peel Police's policy requiring the removal of jewellery. He said that it is impossible to know what can and cannot threaten officer safety or the safety of a detainee.
[23] I cannot accept the Crown's submission that there was any need to remove the bracelets. I saw the bracelets in court. They are made of thread. They are no larger than necessary to fit Mr. Camargo's wrists. They posed no safety risk. If there was a concern that the bracelets may have been concealing something, it would have been easy enough for police to have inspected them. Cst. Strain did not articulate any safety concerns that they might have raised. He simply justified their removal as part of police policy. There was no justification for cutting them off.
[24] Moreover, the alleged safety concern is contradicted by the police allowing Mr. Camargo to keep the thread anklet on his right ankle. Surely if the bracelets had been such a safety concern, they would have considered it essential to remove the anklet as well. It was the same as the ones they cut off.
[25] In making this finding, I am mindful that the policy of jewellery removal is not, by itself, an unreasonable one. But there was no justification to so rigidly apply that policy to the thread bracelets that Mr. Camargo was wearing. They were not a threat to anyone's safety and they were clearly not concealing anything that could be a threat. Removal of the bracelets was unreasonable.
3.4. Section 10(b)
3.4.1. Informing Mr. Camargo Without Delay
[26] As mentioned above, Mr. Montes did not pursue this breach allegation in oral argument. In my view, there was no breach of the immediacy requirement. Cst. Strain informed Mr. Camargo of his right to counsel very shortly after placing him under arrest and securing him in his police cruiser.
3.4.2. The Failure to Hold off Questioning
[27] When Mr. Camargo was initially brought into the breath testing room, he still had not had a chance to consult duty counsel. Cst. Strain began to read Mr. Camargo his rights. Mr. Camargo did not answer Cst. Strain when asked if he understood what he was being told. Instead, Mr. Camargo started protesting that he had not been driving. In response, Cst. Strain explained to Mr. Camargo that he had been driving and, during this back and forth with Mr. Camargo, Cst. Strain asked him several questions about the offence. Although Cst. Strain did so in response to Mr. Camargo arguing about the impropriety of having been arrested, he still ought to have held off on asking any questions. This questioning clearly constituted a breach of Mr. Camargo's right to counsel. I did not understand Crown counsel to argue otherwise.
3.4.3. The Failure to Provide Mr. Camargo with Linguistic Assistance
[28] Mr. Camargo testified that he did not understand his rights as they were explained to him. He also argued that he ought to have been provided with an interpreter or access to a Spanish-speaking duty counsel to properly exercise his right to counsel.
[29] Mr. Montes argued that several factors ought to have made it apparent to the police that Mr. Camargo required linguistic assistance, including Mr. Camargo's accent and his use of Spanish early in his interaction with police; the fact that he came to Canada from Columbia in 2008; and Mr. Camargo's apparent non-responsiveness to certain questions that he was being asked. Mr. Montes argued that special circumstances existed here that should have alerted police to his client's need to linguistic assistance.
[30] The fact that Mr. Camargo spoke with an accent and came to Canada 10 years ago was not, on its own, enough to alert the police to Mr. Camargo's need for an interpreter or Spanish-speaking duty counsel. The Greater Toronto Area, particularly Peel Region, is home to many recent immigrants and many people who speak English with strong accents. Because English is their second language, their syntax and word selection may not be perfect. However, simply because someone has an accent, and does not speak perfect English, does not automatically mean that he or she needs linguistic assistance.
[31] Mr. Camargo's answers to the police also would not have alerted them to his difficulty understanding English. While it is true that some of Mr. Camargo's answers were not responsive, those answers would not necessarily give police reason to believe he could not understand English. Context matters. Like many people who end up in custody, Mr. Camargo's non-responsiveness took the form of repeatedly denying that he had done anything wrong. Mr. Camargo also showed obvious signs of impairment. It is equally likely that his non-responsiveness to the questions was the result of his impairment or his adamant denial of having committed any offence.
[32] Watching Mr. Camargo's interaction on the breath room video makes it apparent that his English was good enough, and his answers were responsive enough, that it was reasonable for the police to have believed that he did not need an interpreter to understand his rights and to consult with counsel. For example, Mr. Camargo understood that he could call a lawyer, because he said he had a lawyer whose number was at his house in his phone. He also told the Cst. Strain in the breath room that the police had taken him from his home illegally. After speaking with duty counsel, and discussing the location of his driving, he told Cst. Strain "I'm being sarcastic with you now."
[33] Similarly, Mr. Camargo's use of some Spanish words when he was initially speaking with police is of no moment. When people have been drinking heavily, it is not uncommon to lapse into their mother tongue momentarily. That is all that happened here.
[34] I also cannot find that Mr. Camargo had any difficulty in his consultation with duty counsel. When Cst. Strain confirmed with Mr. Camargo that he had spoken with duty counsel, Mr. Camargo replied, "not really, like he pissed me off." He did not say to Cst. Strain that he did not understand duty counsel. Indeed, Cst. Strain reminded Mr. Camargo that he could help him get hold of the lawyer whose number was in his phone if he would allow the police to get his phone from his house or wake up his brother who Mr. Camargo said was at home. Mr. Camargo did not take him up on that offer.
[35] Consequently, I cannot accept Mr. Camargo's evidence that he had trouble understanding duty counsel. Mr. Camargo was quite vocal in the breath room. He argued with Cst. Strain. He was no shrinking violet. I am satisfied that if Mr. Camargo had not been able to properly communicate with duty counsel he would have said so, and not simply said that duty counsel had "pissed me off." This is not a case like R. v. Bassi, [2] where the defendant expressed difficulty understanding his conversation with duty counsel.
[36] Mr. Camargo has not established a breach of s. 10(b) rights based on the police's failure to provide linguistic assistance.
3.5. Section 24(2)
[37] Crown counsel acknowledged that the strip search was a breach of s. 8 and that it should result in the exclusion of the breath samples and Intoxilyzer results. That concession was proper. The breaches I have found warrant exclusion of evidence under s. 24(2) of the Charter.
[38] The breaches committed by the police, cumulatively, were very serious. Although the s. 10(b) breach here was not the serious end of the exclusionary spectrum, the s. 8 breach was. There was no basis to conduct a strip search. There was no basis to remove and destroy Mr. Camargo's bracelets as part of a search incident to arrest. Moreover, the breaches here had a significant impact on Mr. Camargo's Charter-protected interests. The strip search had a significant impact on his privacy. Strip searches involve a significant intrusion into one's privacy and personal dignity. Although the breath samples are reliable and essential to the Crown's case, this cannot spare the breath samples and Intoxilyzer results from being excluded.
[39] Mr. Montes also argued that I should exclude the breath room video from evidence because it was obtained in a manner that violated the Charter. He argued that the decision in R. v. Pino [3] supported his position that the video ought to be excluded.
[40] I cannot agree that the breath room video was obtained in a manner that violated the Charter. The video captures nothing more than the observations that could have been made (and were made) by police. Any observations made by officers in this case did not arise because of the Charter violation. Nor did the breath room video itself. The authorities are against Mr. Camargo's position on this point. [4] I cannot find that the breath room video was obtained in a manner that violated the Charter.
[41] Because of the breaches that I have found, Mr. Camargo's breath samples and Intoxilyzer results will be excluded under s. 24(2) of the Charter. The result is that the over 80 charge is dismissed.
3.6. Is a Stay of Proceedings Appropriate?
[42] Mr. Montes argued that the proceedings against Mr. Camargo should be stayed because of the strip search, combined with the improper search incident to arrest and breach of his right to counsel. He argued that the cumulative effect of the breaches requires a stay of proceedings. I cannot agree with this submission.
[43] In R. v. Babos, [5] the Supreme Court set out the following three requirements a court must consider in deciding whether to stay proceedings:
(1) There must be prejudice to the accused's fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits."
[44] Mr. Camargo's request for a stay engages the so-called residual category, where the impugned state conduct risks undermining the integrity of the judicial process. I will consider the three requirements in Babos as they relate to this residual category.
3.6.1. Prejudice to the Integrity of the Justice System
[45] In considering the first requirement, a court must determine whether the impugned state conduct that is "offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system." [6] The inquiry at the first stage will favour a stay of proceedings where it appears that "the state misconduct is likely to continue or that carrying forward with the prosecution will offend society's sense of justice." [7] The question a court must answer at the first stage of the Babos test is "whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system" and "would lend judicial condonation to impugned conduct." [8]
[46] In my view although the breaches in this case are serious, they are not so serious that continuing forward with the prosecution would do further harm to the integrity of the justice system or would condone the police's conduct. The strip search in this case was not justified, but it was not the most intrusive of strip searches and it was of relatively short duration. Similarly, while the removal of the bracelets was not necessary and resulted in the unnecessary destruction of Mr. Camargo's bracelets, it was not the most egregious breach of s. 8.
[47] In saying this, I do not mean to make light of the police conduct. But in every case where a Charter claimant seeks a stay, a court will be required to characterize the state misconduct and determine just how serious it is. In this case, though I have found that the state misconduct warrants exclusion under s. 24(2), it is simply not serious enough that continuing the trial would perpetuate the harm. It is not for this court to enter a stay of proceedings simply because the police conduct was uncalled for or unconstitutional. As Babos makes clear, circumstances warranting a stay of proceedings will be exceptional. [9] A stay should not be treated as a casual remedy to be used every time a trial court disapproves of the police's conduct. To warrant a stay, the conduct must be so serious that it would undermine the public sense of decency or fair play. [10]
[48] In coming to this conclusion, I have considered whether declining to enter a stay might be seen as turning a blind eye to the police's disregard of Mr. Camargo's rights and this court not taking the breaches here seriously enough. Many breaches of defendants' Charter rights are serious. Many such breaches raise the potential that the police will repeat the breach. I have nothing before me establishing a likelihood that the breach will be repeated. Mere ignorance of Charter standards by individual police officers does not, by itself, demonstrate that the breaches will continue without judicial condemnation expressed through a stay of proceedings. There is no reason to believe that exclusion of evidence would not have the requisite denunciatory and deterrent effect.
3.6.2. Alternative Remedy
[49] The focus at the second stage of the Babos test is "whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward." [11]
[50] In this case, there is an alternative remedy capable of remedying the prejudice. That remedy is exclusion of evidence. In my view, excluding the evidence can address the police misconduct here. Indeed, excluding the breath samples and Intoxilyzer results is more connected to the state misconduct because Mr. Camargo was at the police station for the purpose of providing breath samples.
3.6.3. Balancing
[51] The third step of the Babos test is only necessary where there is still uncertainty about entering a stay after considering the first two parts of the test. In this case, although I have found that the first two steps do not favour a stay of proceedings, I will still consider the balancing set out in step three.
[52] The balancing exercise requires a court to consider the following factors: the nature and seriousness of the state misconduct; whether that misconduct is isolated or reflects a systemic and ongoing problem; the circumstances of the accused, the charges, and the interests of society in having a trial on the merits. [12] The court must decide whether "the price of the stay of a charge against a particular accused is worth the gain." [13] Moldaver J. recognized that an accused who seeks a stay under the residual category has an "onerous burden" and that stays under the residual category will be "exceptional" and "very rare." [14]
[53] In this case, balancing the state's misconduct here against the societal interests of a trial on the merits, I cannot find that a stay of proceedings is warranted. As mentioned above, although the Charter breaches here were serious, they were not so serious that they warrant a stay of proceedings of the impaired driving charges. I have nothing before me, on this record, to suggest that what happened here reflects a systemic or ongoing problem. Moreover, the breach in this case is entirely separate from the offence of impaired driving, that occurred some time before the breaches in this case. Balanced against the breach is the seriousness of the offence. The Supreme Court and other courts have repeatedly stressed the serious risk that impaired drivers pose to the public. There is a strong interest in having a trial on the merits. Therefore, after balancing the factor set out in Babos, I find that a stay is not warranted in this case.
[54] The application for a stay of proceedings is dismissed.
4. Impaired Driving
[55] While Mr. Montes took issue with whether Mr. Camargo was the person who was trying to free his car from the street sign, I did not understand him to take any issue with the fact that his client was operating his vehicle on the driveway where he was arrested. I agree with Mr. Montes that the identification evidence provided by Mr. Everitt and Ms Everitt is insufficient to prove that his client was the one who was trying to free his car from the street sign. However, I accept Cst. Strain's evidence that he saw the orange car pull into the driveway shortly before he found Mr. Camargo in it behind the driver's seat. Cst. Strain also said he saw the car moving back and forth in the driveway. I am satisfied beyond a reasonable doubt that Mr. Camargo was operating the vehicle.
[56] I am also satisfied beyond a reasonable doubt that Mr. Camargo's ability to drive was impaired. In finding that he was impaired, I rely on Cst. Strain's observations of Mr. Camargo when he encountered him on the driveway. Mr. Camargo was not responsive at first when Cst. Strain spoke to him. He gave the officer a blank stare. He did not react. More importantly, Mr. Camargo was unsteady on his feet and smelled of alcohol. Cst. Strain said that Mr. Camargo had to use the car to stabilize himself and could not walk straight. This evidence clearly shows that Mr. Camargo's ability to drive was impaired by alcohol.
[57] Therefore, I find that the Crown has proven the charge of impaired operation beyond a reasonable doubt.
Released: October 17, 2018
Justice M.M. Rahman
Footnotes
[1] R. v. Golden, 2001 SCC 83 at para 99.
[2] R. v. Bassi, 2015 ONCJ 340.
[3] R. v. Pino, 2016 ONCA 389.
[4] R. v. Lutchmedial, 2011 ONCA 585; R. v. DeWitte, 2012 ONSC 1265; R. v. Kelly, 2014 ONSC 5617.
[6] Babos, supra, at para. 35.
[7] Babos, supra, at para. 36, citing Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.
[8] Babos, supra, at para. 38.
[9] Babos, supra, at para 44.
[10] Babos, supra, at para 44.
[11] Babos, supra, at para 39.
[12] Babos, supra, at para 41.
[13] Babos, supra, at para 43, citing R. v. Zarinchang, 2010 ONCA 286 at para. 60.
[14] Babos, supra, at Para 44.