Court File and Parties

Ontario Court of Justice

Date: 2018-11-09

Court File No.: Brampton 3111 998 17 8241

Between:

Her Majesty the Queen

— and —

Thomas O'Gorman

Before: Justice G.P. Renwick

Heard on: 31 October, 01, 02 November 2018

Reasons for Judgment released on: 09 November 2018

Counsel

G. Gill — counsel for the Crown

G. Pannu — counsel for the defendant Thomas O'Gorman

Ruling on the Charter Applications

RENWICK J.:

INTRODUCTION

[1] The Defendant is charged with driving dangerously, failing to remain and provide particulars following a motor vehicle collision ("FTR"), impaired operation of a motor vehicle, and driving with an excess blood alcohol concentration.

[2] The Defendant brought an Application at the start of his trial to exclude "all evidence, oral utterances, statements, and breathalyzer results of the Applicant herein prior to and after his arrest" for violations of his ss. 7, 8, 9, and 10(b) Charter rights. The parties agreed at the outset of the Defendant's trial that the evidence taken during the trial would proceed in a "blended voir dire" simultaneous to both the Charter application and the prosecution's application to admit utterances of the Defendant (the "voluntariness" voir dire).

[3] The onus of proof on the Charter application is upon the Defendant to demonstrate on a balance of probabilities that his rights have been violated, while the prosecution must prove that the Defendant's utterances to the police at his home and during the evidentiary breath sampling were voluntarily made, beyond a reasonable doubt.

[4] During the voir dires, the prosecution called the evidence in support of the entire prosecution (two civilian witnesses, one expert witness, and three police officers, in addition to introducing several exhibits) against the Defendant. The Defendant testified on his Applications and the voluntariness voir dire, alone. Submissions were made on both Applications in order that the Defendant could receive a ruling on the admissibility of the police evidence before deciding whether or not to call a defence.

[5] During submissions, several concessions were made by the parties. The prosecution conceded that there were two constitutional violations that occurred during this investigation: the Defendant's detention in the police cruiser was arbitrary, and the Defendant was not immediately informed of his right to counsel upon that detention. The Defendant conceded that the statements he made to the police were voluntary. Even were it not for the Defendant's concession, on all of the evidence, I have no hesitation in concluding beyond a reasonable doubt that the utterances made by the Defendant to the police at his home and in the breath sampling room were voluntary and the product of an operating mind, rather than the result of any inducements, threats, or his loss of free will.

[6] These reasons will consider whether it is established that the Defendant's ss. 8, 9, and 10(b) Charter rights were violated and whether s. 24(2) of the Charter requires the exclusion of any of the evidence gathered in this case.

THE EVIDENCE AND FINDINGS

[7] I listened carefully to all of the evidence and took careful notes. As well, I have reviewed portions of the digital audio recordings of the evidence taken during the Charter and voluntariness voir dires. I do not propose to repeat much of the evidence, except where it is necessary to understand my factual findings.

[8] As with any proceeding, I am entitled to accept some, none, or all of what a witness said. The role of the witness in the proceedings does not enhance nor detract from the value of the witness' testimony. I have considered factors related to the credibility of each witness (balance, candour, honesty, and motive to testify) and factors related to reliability (memory, perception, ability to communicate, and demeanor).

[9] Constable Julian Golia was the main prosecution witness on the Charter application. Overall, I found this witness to be balanced, credible, and reliable, with one exception, noted below.

[10] This officer relied on his notes while testifying, but his evidence was balanced and it revealed a naivety (some might say "ignorance") that enhanced his credibility. The officer testified that he went to the Defendant's home, which was the home of the registered owner of the Kia motor vehicle that had been involved in a collision and had allegedly left the scene.

[11] Once the Defendant opened his front door, the officer testified that he immediately identified that he was investigating a motor vehicle collision at Sunny Meadow Boulevard and Larkspur Road and anything the Defendant told him could support charges under the Highway Traffic Act or the Criminal Code. Constable Golia testified that when he told the Defendant what he was investigating the Defendant responded: "it was her fucking fault, the foreigner backed into me." Because the Defendant had come to the door in his underwear, the officer told him to get dressed. Around this time, Constable Golia also learned that the Defendant matched a very general description of the driver who had fled the scene of the collision.

[12] Although the officer did not testify that he had reasonable grounds to believe that the Defendant had committed the HTA offence of FTR at this point, I find that there were objectively reasonable grounds to believe the Defendant had been involved in a motor vehicle collision and he left the scene, contrary to the requirements of the HTA because:

i. The police had a description of the motor vehicle that had left the scene, including its license plate;

ii. The police reasonably relied upon the Ministry of Transportation records to find the home of the registered owner of the involved motor vehicle;

iii. The defendant matched a very generic description of the driver who had left the scene;

iv. The investigation at the Defendant's home took place close in time and it was in close proximity to the location of the motor vehicle collision; and

v. The Defendant made an unprompted utterance which apparently related to the motor vehicle collision under investigation.

[13] The officer also noted that the Defendant appeared to be slurring his words, but the officer testified that he believed that this was because the Defendant was missing some of his teeth. When the Defendant returned to the door after getting dressed, the officer asked where the Defendant's car was. The Defendant said the car was in the garage and according to the officer, the Defendant volunteered to show him the vehicle.

[14] Once Constable Golia saw the vehicle with the license plate that matched the description given at the scene of the collision and he observed some damage on the front bumper, he testified that the Defendant: "confirmed he did get into a motor vehicle collision at Sunny Meadow and Larkspur and he left because he was panicking."

[15] At this point, rather than arrest the Defendant, the officer asked the Defendant to accompany him to his police cruiser. While walking, Constable Golia noted that the Defendant seemed off-balance. Constable Golia patted down the Defendant before placing him inside the rear of his cruiser and shutting the door. When asked in his evidence in chief why he placed the Defendant in his police car, the officer testified that he did this to continue to investigate the FTR. He testified that he did not give the Defendant his rights to counsel at this point because the Defendant was not under arrest. In his testimony the officer said:

I had yet to confirm whether a criminal offence had occurred. I wanted him to be in a controlled area to continue the investigation. I wanted to call the other officer. I wanted to supervise him. It was safe for him and me. His behaviour was a bit erratic, he was becoming more and more vocal. His demeanor was somewhat aggressive prior to getting in the cruiser. The way he was acting: "it was her fucking fault, the foreigner backed into me" this was his type of language he used throughout.

[16] In the officer's mind, he was not certain whether the Defendant should be charged criminally or under the provincial statute and he wanted to speak to Constable Doyle at the collision scene. After approximately 2-3 minutes, Constable Golia learned some of the circumstances of the alleged dangerous driving and that the complainant had been injured and he arrested the Defendant for this offence and the criminal offence of FTR.

[17] It was only during the provision of the Defendant's rights to counsel, that the officer noted the smell of alcohol coming from the Defendant. Constable Golia testified that everything now added up (the slurred speech, the unsteadiness on his feet, the belligerence and the use of profanities during the provision of the rights to counsel) and he formed the opinion that the Defendant was impaired by alcohol.

[18] He re-arrested the Defendant and again he provided the Defendant with his rights to counsel and caution, and he made a breath demand. To the questions asked by the officer during the provision of the s. 10(b) Charter rights the Defendant responded: "you wanna fuck with me," "you're a shit," "fuck you," "fuck off – get the minority punks out of here," "I'll fucking slit your throat," and "I own you."

[19] In cross examination, Constable Golia's evidence was consistent but there were some details which he revealed he had not mentioned during his examination in chief. Constable Golia testified that before reaching the Defendant's home he was updated that the driver who fled the scene was possibly "impaired."

[20] Constable Golia readily admitted in cross-examination that he did not advise the Defendant that he did not have to answer his questions, nor did he tell the Defendant that he did not have to open the garage to permit the officer to see his car. Again, naively, because he was not certain whether this was an HTA or a criminal matter, the officer seemed to think he did not have to caution the Defendant about this investigation. Given the manner and content of these admissions, I find that Constable Golia was being truthful throughout his testimony.

[21] Also in cross-examination Constable Golia testified that once they were at the police station he asked whether the Defendant wanted to speak to a lawyer: "I gave him another opportunity. On scene he wasn't responding to my questions."

[22] It was also in cross-examination that the officer testified for the first time that the Defendant's car was reversed into the garage. He testified that when the garage was opened by the Defendant he could see the damage to the front bumper without entering the garage.

[23] In re-examination, the officer was asked why he did not provide the Defendant his rights to counsel upon putting the Defendant inside his police car. He testified:

I was not sure if this would be HTA or criminal consequences. I wanted to know so I can give him his rights accordingly, instead of just saying it's a FTR, which can be either HTA or criminal, this way I can find out it was criminal and give him his rights to counsel and caution for criminal offences.

[24] Lastly, Constable Golia testified that it was during the call to Constable Doyle that he learned about the dangerous driving allegation and the complainant's injuries. This information crystalized that the Defendant should be charged for FTR under the Code.

[25] For the most part, the Defendant's evidence did not contradict Constable Golia's account. This is largely due to the Defendant's lack of memory about many of the details of his interaction with Constable Golia. At times during his testimony on the voir dires the Defendant seemed to be guessing. At other points, the Defendant testified to what he believed he may have told the officer.

[26] My overall impression of the Defendant was that he was trying to testify truthfully, although he did not have many memories of what had taken place on the day in question. Despite having testified for the purpose of both voir dires, the Defendant gave no evidence, nor was he cross-examined with respect to the voluntariness of his statements to the police.

[27] Concerning his ability to accurately recall and relate the events in question, the Defendant testified that he believed that the officer only gave him his rights to counsel at the police station. If this were accurate, all of the answers purportedly said by the Defendant in the police car to Constable Golia were fabricated, or, those answers were not given to the officer when and where the officer had testified that they were. I do not accept that Constable Golia was mistaken, inaccurate, or in any way untruthful about the Defendant's responses, or where he received them. Notably, there was no cross-examination of the officer on this point. There was nothing in the officer's testimony or any other evidence to cause me to doubt that he was being completely truthful about this aspect of his interaction with the Defendant. I find that the Defendant is completely mistaken when he testified that his rights to counsel were first given at the police station.

[28] During cross-examination, the Defendant admitted that he had a limited memory of the day he was arrested, and he specifically agreed that his lack of memory included much of his interactions with Constable Golia. Rather than accept that his lack of memory was the result of the consumption of alcohol, the Defendant testified that this was a function of the passage of time. This is not a completely implausible explanation, given that approximately 16 months had elapsed since the events about which he testified had occurred. However, I need not decide what caused the Defendant's lack of memory, nor whether this affects my assessment of the Defendant's credibility. In the end, it is obvious to me that the Defendant recalls very little of what occurred before his initial arrest and he is not a reliable historian for the parts he does recall.

[29] On the question of whether the Defendant volunteered to show the officer where his car was, I noted the following exchange during cross-examination:

Q. And you don't remember what you remembered in that regard back in July, on July 4th, 2017, correct?

A. I'm sorry, I didn't…

Q. You don't remember what you remembered with respect to the issue of not having to speak to the police back on July 4th, 2017, correct?

A. Correct.

Q. And when the officer, just because you don't remember the exact words the officer used when he asked about your vehicle, correct?

A. Correct.

Q. And you don't remember the officer telling you that you, that you have to show him your car, right?

A. I'm sorry.

Q. You don't remember the officer telling you that you must, or you have to show him your vehicle?

A. I don't recollect that.

Q. And you understand, understood that there're potential consequences of showing the officer your vehicle, correct?

A. No, not really.

Q. And when you showed the officer your vehicle, you were being cooperative, with the officer, correct?

A. I believe so, yes.

Q. But you can't recall exactly why you showed him the vehicle?

A. Because he asked me to? So I just, I just thought that's what you do when an officer asks you to do something, you do it.

Q. Sir, I'm going to suggest that the officer asked you where the vehicle was, not that he asked you to show him your vehicle.

A. Well, where it was and to show him, would be not the same thing? Because it was in the garage, so I would have to tell him where it was.

Q. And would you agree with me that you were trying to be helpful to the police?

A. Ah, yes.

Q. You didn't feel compelled to show your vehicle to the police, correct?

A. At the time, I don't think so. I wouldn't, no, I'd have to say no on that one.

VIOLATIONS OF THE CHARTER

[30] The prosecution submits that there was no s. 8 Charter breach in the circumstances that gave rise to the officer's observations of the Defendant's motor vehicle in the garage in all of the circumstances:

i. The Defendant was not under arrest or detention;

ii. The Defendant was aware that the police were investigating a motor vehicle collision that had occurred a short distance away;

iii. The Defendant was trying to be helpful; and

iv. Constable Golia had not come to any beliefs that the Defendant was the driver of the vehicle involved in the collision he was investigating, despite the Defendant's initial utterance, before observing the license plate on the Defendant's vehicle or any damage on the car.

[31] I am unable to accept the prosecution's argument because the evidence establishes that the Defendant was never told he did not have to cooperate with the police, nor that he had the right not to participate in the FTR investigation. Unfortunately, the evidence is ambiguous on the issue of the Defendant's belief that he must cooperate with the police merely because they had asked.

[32] Had the officer explicitly told the Defendant of his right to remain silent and not to assist in the officer's investigation in addition to the opening remark that whatever he said could be used to further the police investigation or support regulatory or criminal charges, the Defendant would have been in a better position to make an informed decision whether or not to participate in the police investigation. For this reason, I am prepared to find, on a balance of probabilities, that Constable Golia breached the Defendant's s. 8 Charter right when he made the observations of the Defendant's motor vehicle in the absence of an informed consent.

[33] As an aside, I do not accept that the vehicle was reversed into the garage as the officer testified. Instead, I find that Constable Golia is mistaken on this point. I find that the officer walked into the Defendant's garage, after it had been opened by the Defendant, and he approached the front of the car where he noticed the slight damage on the driver's side of the front bumper.

[34] Interestingly, neither party considered the questioning of the Defendant in his home or at the garage as part of an investigative detention. Not surprisingly, the Defendant's testimony is largely silent on whether he felt compelled to cooperate in the officer's initial investigation. The only question that came close to seeking the Defendant's state of mind during the officer's questioning was asked in cross-examination:

Q. And because you can't tell us, or remember the words that P.C. Golia used, you can't really tell us about the state of mind you were in, if at all, you blurted out any words to him, correct?

A. Correct.

[35] Instead, the Defendant has alleged a s.9 Charter violation at the point when the officer placed him in the back of the police car to continue the investigation. The prosecutor conceded that this was an arbitrary detention. For several reasons, I do not accept this concession:

i. At this point the evidence is clear that the only uncertainty in Constable Golia's mind was whether the Defendant had committed the HTA offence of FTA or the corresponding offence under the Code;

ii. Objectively, Constable Golia had enough information to charge the Defendant with FTR under the provincial statute;

iii. The officer took control of the Defendant's movements in order to contact Constable Doyle and receive further information;

iv. Constable Golia had observed the Defendant to be unsteady on his feet when walking to the police car, he had observed the Defendant to be slurring his words, but there remained some question in his mind whether this was caused by the Defendant's missing teeth; and

v. Constable Golia had inquired whether the Defendant had consumed any alcohol, but the Defendant said he had not.

[36] On these facts, when Constable Golia asked the Defendant to sit in the back of his locked police car, I find that he was still investigating whether the Defendant had committed any criminal offence, he had already formed the opinion that the Defendant could be charged for the provincial offence of FTR, and he wanted to continue the investigation. This was a brief investigative detention, not an arbitrary detention.

[37] At this point, the Defendant ought to have been provided with his s. 10(b) rights to counsel. This was not done until 2-3 minutes later, after the officer had finished his discussion with Constable Doyle.

SECTION 24(2) CHARTER ANALYSIS

[38] Section 24(2) of the Charter recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct with a qualitative analysis of the long-term effect of the admissibility of tainted evidence upon public confidence in the criminal justice system.

[39] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breaches upon the Charter-protected interests of the Applicant; and

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

[40] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor "pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case."

Seriousness of the Charter-Infringing State Conduct

[41] In this case, there are two distinct Charter violations, which are unrelated (s. 8 and s. 10(b)). The constitutional infringements arise from the initial search of the garage and a lapse of several minutes after the Defendant's detention before the police afforded the Defendant his rights to counsel. This is not a situation involving an isolated Charter violation by an unsophisticated state actor or a novice who was uncertain of his authority in an unsettled area of the law.

[42] As a result of the unlawful search of the Defendant's garage, the officer became satisfied that the Defendant's car had been involved in the collision he was investigating. At this time, Constable Golia received an admission from the Defendant: "he confirmed he did get into a motor vehicle collision at Sunny Meadow and Larkspur and he left because he was panicking." I find that this admission would not have been uttered but for the s. 8 Charter violation.

[43] The seriousness of this Charter violation is aggravated by its locus: the Defendant's home.

[44] However, the seriousness of this Charter violation is mitigated for the following reasons:

i. The unconstitutional search did not involve the inside of the Defendant's dwelling;

ii. The Defendant did not feel compelled to show the police his vehicle;

iii. The Defendant was trying to cooperate with the police investigation and his evidence was inconsistent on the likelihood he would have cooperated had he been given a proper caution;

iv. The search of the garage was brief;

v. The search was prompted by a question about the location of the Defendant's vehicle rather than a direct request to see the car;

vi. The Defendant gave the police his consent to search the garage, but it was not an informed consent; and

vii. Objectively, the officer did not need to see the Defendant's vehicle to have a reasonable belief that the Defendant had been involved in the hit and run accident, given the Defendant's initial utterance.

[45] In the result, I find that the s. 8 violation was minimally serious. The s. 10(b) violation was even less serious because the officer did not detain the Defendant to gather more evidence from him. The two Charter violations are independent of each other and they do not signal a systemic problem or a blatant disregard for constitutional norms. The officer's failure to provide the rights to counsel immediately upon detaining the Defendant was technical and it was cured within minutes, after the completion of the inquiry of Constable Doyle.

[46] In these circumstances, there is almost no pull in favour of excluding the Defendant's voluntary admission of his involvement in the collision and his flight because he had panicked. Yet, the Defendant seeks to exclude all police observations and the eventual breath sampling results from this trial.

[47] Other than the admission made by the Defendant, there is no other evidence that flows from the s. 8 breach. The officer's observations of stumbling, his inquiry of Constable Doyle, the grounds for the initial arrest, the grounds for the second arrest, the grounds for the evidentiary breath demand, and the breath sampling results were always discoverable as independent pieces of evidence which did not result from the search of the Defendant's garage.

[48] Given the lack of any causal, temporal, or contextual link between the search of the garage and the other pieces of evidence the Defendant seeks to exclude, I do not find that any of the evidence gathered after the Defendant was detained should be excluded under the first branch of the Grant analysis.

The Effect of the Charter Breaches

[49] There is a causal nexus between the search of the Defendant's garage and the utterance implicating the Defendant. Although the Defendant had already made an unprompted utterance that implicated him, this second utterance was far more inculpatory. The effect of the breach of the Defendant's s. 8 Charter right was the Defendant's own resignation that he was caught. At this point he participated in creating evidence against himself. The effect of the unlawful search of the garage was to further the police inquiry and to conscript the Defendant into his own investigation, at his peril. This consequence strongly favours exclusion of the Defendant's admission of liability.

[50] Again, without a connection between the search of the garage and the other evidence gathered in this case (beyond the confession), I do not find that the effect of both Charter violations requires all other independent pieces of evidence to be excluded.

The Long Term Effect Upon Public Confidence in the Justice System

[51] The s. 8 Charter breach was of minimal seriousness (because it involved the garage portion of a dwelling), and directly lead to the reception of an incriminating statement. Although it happened before other investigative steps were taken, the search of the garage did not cause other evidence that existed independently to become discoverable. The Defendant, to use his own words, apparently had nothing to hide. He invited the police to look at his car in his garage. The fault of the police for failing to directly caution the Defendant and to seek his informed consent to look at his car arose in the context of what began as a HTA investigation into the flight of a vehicle after a collision.

[52] The failure to immediately advise the Defendant of his rights to counsel upon his detention was technical and inconsequential.

[53] The observations of the police that lead to the breath demand and the results of the breath sampling were real, independent, and discoverable pieces of evidence that did not result from the observation of the Defendant's car. If all of the evidence obtained following the search of the Defendant's garage were excluded in the circumstances of this case, there would be a public loss of confidence in the judicial system which would harm the long term reputation of the administration of justice.

[54] Despite the pull toward the exclusion of the Defendant's admission from his trial as a consequence of the s. 8 Charter violation, all other considerations favour including every other piece of evidence that was gathered after the s. 8 breach.

CONCLUSION

[55] The Defendant has established that his s. 8 Charter right was violated by Constable Golia. In all of the circumstances, after a careful balancing of the three Grant factors, I am satisfied on balance that the Defendant's brief confession outside his garage ought to be excluded from this trial. The Defendant has failed to establish that any other evidence ought to be excluded from his trial.

[56] The Charter Application under s. 8 is granted in part, while the Applications under ss. 9 and 10(b) are dismissed.

Released: 09 November 2018

Justice G. Paul Renwick