Ontario Court of Justice

Date: December 5, 2018

Between:

Her Majesty the Queen

— and —

Colin Ramnath

Before: Justice B. Green

Heard: October 3, 2018

Reasons for Judgment Released: December 5, 2018

Counsel:

• Mr. N. Trbojevic, Counsel for the Crown
• Mr. V. Paskarou, Counsel for the Defendant

A. Introduction

[1] Mr. Ramnath is charged with one count of operating a motor vehicle with more than 80 mg of alcohol in 100 ml of his blood. As is common with these types of cases, Counsel advanced Charter arguments seeking the exclusion of the breath readings. This case is unusual however, because of the facts that contextualize the legal issues.

[2] The arresting officer was a peace officer working for a nuclear power plant. That officer subjectively believed that he had reasonable grounds to arrest Mr. Ramnath for impaired driving. Following Mr. Ramnath's arrest, he conducted a cursory pat down, handcuffed Mr. Ramnath and awaited the arrival of the police.

[3] When officers from the Durham Regional Service arrived on scene and took custody of the Defendant, they did not believe that there were sufficient grounds to continue the arrest of Mr. Ramnath for impaired driving. However, they independently formed a reasonable suspicion that Mr. Ramnath had alcohol in his body and so they made a roadside screening demand and administered the test. After Mr. Ramnath failed the roadside screening test, the DRPS officers formed reasonable grounds to arrest him for operating with more than 80 mg of alcohol in 100 ml of blood and arrested him for that offence. Throughout this whole investigation, from the moment Mr. Ramnath was arrested by the peace officer up until he was booked at the station at least 36 minutes later, his hands were cuffed behind his back the whole time.

[4] The trial was focussed entirely on the Charter applications alleging that (1) the peace officer did not have reasonable grounds to arrest Mr. Ramnath for impaired driving and (2) that the manner in which the roadside breath samples were subsequently seized was unreasonable due to the prolonged period of time that Mr. Ramnath spent in handcuffs. Similarly, Counsel submitted that the manner in which Mr. Ramnath was detained at the roadside was arbitrary. The defence contended that, because more than one Charter right was breached and because of the serious nature of the breaches, both the roadside breath sample and the breath samples subsequently obtained at the station ought to be excluded and Mr. Ramnath should be acquitted.

[5] The Crown submitted that the peace officer did have sufficient grounds to arrest Mr. Ramnath for impaired driving so there was no breach of his section 8 or 9 Charter rights. The Crown argues that the difference of opinion held by the more experienced responding officers who attended later should not alter this Court's assessment of the initial grounds. Alternatively, even if the peace officer did not have objectively reasonable grounds to arrest Mr. Ramnath, there were ample grounds to justify detaining him pending the arrival of DRPS officers for further investigation of the Defendant's sobriety. Those officers formed reasonable grounds to arrest Mr. Ramnath once he failed the lawfully administered roadside breath test. The Crown argues that the brief period of time that Mr. Ramnath spent in handcuffs before the officers formed the grounds to arrest him was neither unreasonable nor arbitrary. Alternatively, if the Court were to find any breaches of Mr. Ramnath's Charter protected rights, the Crown urged the Court to follow the Ontario Court of Appeal's decision in R. v. Jennings, 2018 ONCA 260 and decline to grant an exclusionary remedy for any of the alleged breaches.

B. Narrative

[6] The evidence of the power plant officer and the police officers involved in this case was simple and straightforward. I was impressed with their candour and professionalism throughout the trial.

[7] Officer Vine is a security officer who is employed by the Ontario Power Generation Nuclear Security. The Security for Electricity Generating Facilities and Nuclear Facilities Act statutorily designates officers employed in that capacity to be "peace officers while engaged in providing these services". As a result, Officer Vine's investigative actions are subject to Charter scrutiny.

[8] Officer Vine had been employed for 8 months as a peace officer at the time of this incident. He had never been involved in an impaired driving investigation. He completed two years of a college education in policing and he received 2 months of training on the legalities of an investigation. Although he received training and he had been provided standard cards with respect to reading a detained person their rights to counsel and cautions, he did not have any training with respect to reading a breath demand or administering roadside breath tests. In any event, the power plant did not have any approved screening devices.

[9] Officer Vine described the front entrance area of the nuclear power plant in Pickering. It is accessible by a public driveway however, there are posted signs to alert a person that they are entering a power plant. These signs are plainly visible and indicate "welcome" to the power plant as well as directions to either the visitor or employee parking.

[10] On July 22nd, 2017, at 4:15 a.m., Officer Vine was in a security uniform and working at the guard shack at the main entrance to the power plant. Mr. Ramnath pulled up in a car in the power plant's entranceway and he stopped about 10 metres from Officer Vine's location. This was not the time of day when there would typically be visitors to the plant. Officer Vine acknowledged however, that some drivers occasionally get lost and end up at the power plant while trying to locate Brock Road. Because the vehicle had stopped in the middle of the road, Officer Vine stepped out of the guard station and waved the driver over.

[11] Officer Vine described how the driver pulled up slowly but he also testified that he did not notice anything unusual about the driving. Officer Vine engaged in a conversation with Mr. Ramnath who properly identified himself with a driver's licence which he retrieved without any difficulty. Mr. Ramnath appeared to be confused but he explained to the officer that he was heading home and didn't know where he was. He was coming from his friend's home and he was trying to get back to Scarborough. Officer Vine advised him that the highway was in the other direction. Mr. Ramnath replied that he was trying to avoid the highway. Officer Vine considered that Mr. Ramnath was "far off" his path home. During cross-examination, Officer Vine expressed the opinion that Mr. Ramnath's confusion did not appear to be just as a result of being lost rather, there was a lot of "hesitation" and he seemed "a little bit out of it" when answering questions. Officer Vine conceded that it was very early in the morning so another possible explanation for the perceived confusion could have been that Mr. Ramnath was tired.

[12] Officer Vine noticed that Mr. Ramnath's speech was slightly slurred and that he was speaking slowly and deliberately. He felt that Mr. Ramnath's speech seemed to be affected by something and his pronunciation of words sounded abnormal. Although he acknowledged that he did not know how Mr. Ramnath normally spoke, based on his experience, he thought that Mr. Ramnath sounded like someone who was intoxicated. He asked him if he had been drinking and Mr. Ramnath replied "yes" and "I had a few". Officer Vine leaned into the car to converse with him but he did not notice any smell of alcohol in the vehicle or on his breath at that time.

[13] Whenever one of the security officers interacts with members of the public, they are supposed to notify their dispatcher who will then notify the police if necessary. Based on Mr. Ramnath's confusion, the fact that he had pulled into a power plant at that time of day, he was avoiding the highway, his speech was abnormal and he admitted to consuming a "few" drinks, Officer Vine believed that there were reasonable grounds to arrest Mr. Ramnath for operating a motor vehicle while impaired by alcohol. On the basis of that belief, Officer Vine decided to arrest Mr. Ramnath. He immediately notified his dispatcher to request that DRPS attend the plant to continue the investigation. Mr. Ramnath was asked to step out of his vehicle.

[14] At 4:20 a.m., Officer Vine advised him that he was under arrest for impaired driving, handcuffed him behind his back and then read him his rights to counsel. Another nuclear security officer was present at this point and Officer Vine conducted a cursory search of Mr. Ramnath. At 4:25 a.m., Officer Vine read Mr. Ramnath the standard cautions. Following his arrest, Mr. Ramnath indicated that that he didn't want to speak to a lawyer at that point and that he understood his rights. In response to the caution, he said that he did not have a lawyer present so he didn't think he would say anything. It is noteworthy that after Mr. Ramnath had been arrested and after he was placed in custody, Officer Vine detected a scent of an alcoholic beverage on Mr. Ramnath's breath.

[15] Officer Vine interacted with Mr. Ramnath from 4:15 a.m. until 4:32 a.m. which was the time when DRPS officers arrived on scene. During those 17 minutes, Officer Vine fairly stated that Mr. Ramnath responded appropriately when conversing with him and he was polite and cooperative throughout his dealings with the Nuclear Security officers. Officer Vine never observed Mr. Ramnath to have any difficulties with his coordination, balance or his gait.

[16] Durham Regional Police dispatched PC Bison-Moser to the scene and advised him that there was a person in custody at the power plant for an impaired driving offence. He arrived on scene at 4:32 a.m. PC Bison-Moser was a new recruit who had only been working on the road for two months at the time that this incident occurred. However, he was working with a more senior coach officer, PC Delaney, who supervised him throughout the investigation. PC Bison-Moser saw two security officers standing with Mr. Ramnath. He spoke directly with Officer Vine. Officer Vine related the following grounds for the arrest of Mr. Ramnath: Mr. Ramnath had been driving slowly towards the guard house when he waved him over, Mr. Ramnath appeared to be confused about his whereabouts, there was an obvious odour of alcohol on his breath and Mr. Ramnath admitted to having consumed some alcohol.

[17] Officer Bison-Moser received custody of Mr. Ramnath at 4:36 a.m. Officer Vine removed his handcuffs and PC Bison-Moser placed his own handcuffs on him with his hands cuffed to the rear. He escorted Mr. Ramnath to the back of the cruiser. Mr. Ramnath explained again to the responding officers that he was lost on his way home and he was not sure of his whereabouts. The officer smelled an obvious odour of an alcoholic beverage coming from his breath but he did not observe any other signs or symptoms that would suggest to him that Mr. Ramnath was impaired by alcohol. He testified that Mr. Ramnath was very steady on his feet, there were no issues with his gait, and he was respectful, coherent, appeared to understand their conversation and responded appropriately. Once Mr. Ramnath was seated in the backseat of the cruiser, PC Bison-Moser continued to smell the odour of an alcoholic beverage and he could see that Mr. Ramnath's eyes were obviously red in colour. Mr. Ramnath also advised PC Bison-Moser that he had consumed some "drinks".

[18] At 4:37 a.m., PC Bison-Moser read Mr. Ramnath his rights to counsel and caution from the back of his duty book. He explained that he initially continued Mr. Ramnath's arrest for impaired driving as a result of the grounds provided to him by Officer Vine. Nevertheless, based on PC Bison-Moser's own observations, he quite fairly determined that he did not subjectively believe that there were reasonable grounds to arrest Mr. Ramnath for impaired driving. Due to the smell of alcohol and Mr. Ramnath's admission that he had consumed "a couple" of drinks, PC Bison-Moser formed a reasonable suspicion that he had been operating a motor vehicle with alcohol in his system. At 4:41 a.m., the officer read Mr. Ramnath the demand to provide a roadside screening breath sample. At 4:42 a.m., he explained the screening test process to him. PC Bison-Moser administered the test with a recently calibrated, properly functioning and readily available approved screening device. Mr. Ramnath provided a breath sample which registered a "fail" on the test. As a result, PC Bison-Moser formed reasonable grounds to believe that he had been operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood and arrested him for this offence and read him a breath demand at 4:44 a.m. At 4:51 a.m. they left the scene to attend the station for the purpose of conducting the breath tests.

[19] From 4:20 a.m. when Officer Vine placed handcuffs on Mr. Ramnath and throughout all of PC Bison-Moser's interactions with Mr. Ramnath, his hands were cuffed behind his back the whole time. Notably, the officers did not remove the handcuffs even after PC Bison-Moser made the informed determination that he did not subjectively possess reasonable grounds to continue the arrest of Mr. Ramnath for impaired driving. For some inexplicable reason, Mr. Ramnath remained handcuffed even during the roadside tests. Mr. Ramnath was consistently in handcuffs until after he arrived at the station at 4:56 a.m. In total, he was in handcuffs for a minimum of 36 minutes and likely even longer considering that the handcuffs were not removed immediately upon their arrival at the station.

[20] PC Bison-Moser agreed that he does not normally handcuff people who are only being detained to perform roadside breath tests. He was not able to explain why he left the handcuffs on Mr. Ramnath throughout this process. PC Bison-Moser candidly admitted that he simply did not turn his mind to removing the handcuffs. While this may be a reflection of Officer Bison-Moser's inexperience at the time, he was not working alone. He was being supervised during this investigation by a more senior officer who was present for the purpose of training him.

[21] PC Bison-Moser's coach officer, PC Delaney, was also called as a witness. He confirmed that he did not notice any signs of impairment while interacting with or observing Mr. Ramnath. He agreed that Mr. Ramnath did not slur his speech or have any problems with his gait. As a result, he suggested to PC Bison-Moser that there were insufficient grounds to arrest him for impaired driving. PC Delaney acknowledged that Mr. Ramnath remained in handcuffs throughout his dealings with the police even after they both decided to conduct a roadside screening test. He felt that this was a rare scenario that he had not dealt with before and, considering the brief period of time that it took to conduct the roadside screening process, PC Delaney did not turn his mind to taking the handcuffs off.

[22] Following Mr. Ramnath's parade in front of the cell Sergeant and the provision of the grounds for his arrest to the Intoxilyzer technician, there was no need to contact Counsel since Mr. Ramnath had waived his rights. Custody of Mr. Ramnath was turned over to the qualified breath technician at 5:19 a.m. Mr. Ramnath subsequently provided two suitable samples of his breath directly into a properly functioning approved instrument that registered truncated readings of 180 mg and 170 mg of alcohol in 100 ml of blood.

[23] Throughout the trial, I found all three officers to be credible witnesses and reliable historians. I accept that, while Officer Vine witnessed some slight slurring of Mr. Ramnath's speech, by the time that Officer Bison-Moser became involved, Mr. Ramnath was not experiencing the same difficulties. I also accept that Officer Vine subjectively believed that he had reasonable grounds to arrest Mr. Ramnath. The questions for me to decide are whether Officer Vine's belief was objectively reasonable in all of the circumstances, whether the manner in which the roadside breath samples were obtained was unreasonable and whether the manner of Mr. Ramnath's continued detention in handcuffs rendered it arbitrary.

C. Legal Analysis

i. The Breaches of Section 8 and 9 Charter Protected Rights

[24] There were no issues argued in this case other than the alleged violations of Mr. Ramnath's section 8 and 9 Charter rights. In order to make a decision in this matter, I am guided by the decisions of R. v. Censoni; R. v. Shephard, 2009 SCC 35; R. v. Bush, 2010 ONCA 554; R. v. Leppanen and R. v. Notaro.

[25] I accept that Officer Vine possessed a subjective belief that there were reasonable grounds for the arrest for impaired driving however, that belief must be supported by objective facts. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were reasonable grounds for the arrest. I am cognizant of the dynamics at play in an arrest situation which necessitate officers making quick but informed decisions. An officer may make a decision based on available information that is less than exact or complete and within a short period of time. I recognize that the opinion developed at the scene by the officer was "without the luxury of judicial reflection".

[26] When assessing whether reasonable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each observation in isolation. An assessment of whether the officer's subjective belief in the requisite grounds was objectively reasonable does not involve the equivalent of an "impaired driving scorecard" adding up the presence or absence of all the usual indicia of impairment. The absence of some indicia that are often found in impaired driving cases does not necessarily undermine a finding of reasonable grounds based on other observed indicia and available information.

[27] I have considered the collective totality of the circumstances known to Officer Vine as opposed to focusing on isolated factors taken out of their context. Even if there were other possible explanations for individual facts that does not necessarily detract from the consideration of those factors as part of the grounds. Of course, the officer had an obligation to take all factors into account including the fact that Mr. Ramnath was obviously lost and he was tired because it was very early in the morning. This does not mean that there was an additional duty for the officer to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.

[28] I recognize that appellate Courts have been very critical of inflating the "reasonable grounds" standard. A very helpful appellate decision on this issue is R. v. Hunt. Submissions about the absence of certain roadside investigative steps, speculation about other explanations for the signs of impairment and the lack of further indicia post arrest conflate the issues to be decided in a voir dire. The case law is clear that roadside tests are unnecessary once the officer formed the requisite grounds. In addition, the Crown is under no legal obligation to proffer evidence to establish that the officer continued to observe signs of impairment after he formed the subjective belief as required.

[29] In the context of a breath demand, the reasonable grounds standard is not an onerous test. An officer need not have anything more than reasonable grounds to believe that the driver committed the offence of impaired driving or driving "over 80" before making a breath demand. The Crown does not have to prove that the officer had a prima facie case before pursuing an investigation. Similarly, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise when determining whether the officer's belief was reasonable. Furthermore, an officer's subjective belief need not be the only inference that can be drawn from a particular constellation of factors but it must be a reasonable inference.

[30] The issue to be decided is whether, at the time when Officer Vine arrested Mr. Ramnath for impaired driving, his subjectively held belief was objectively reasonable. I must consider whether the observations and circumstances articulated by Officer Vine at the time that he made the decision to arrest Mr. Ramnath are rationally capable of supporting a reasonable inference of impairment from slight to great drawn by the officer not whether those inferences were true or even accurate. That is the ultimate issue for a Court to decide in terms of whether the Crown meets its burden of proving impaired driving beyond a reasonable doubt.

[31] Finally, it is important to note that the time period that is relevant for this Court's consideration with respect to the alleged violations of sections 8 and 9 of the Charter are the facts considered by the officer prior to arresting Mr. Ramnath.

[32] I have carefully examined whether the observations and circumstances articulated by Officer Vine are rationally capable of supporting the inference of even slight impairment. While I accept that Officer Vine observed some slightly abnormal speech and confusion, it could not have been too significant since two police officers who took custody of Mr. Ramnath within 21 minutes did not notice any difficulties with his speech or mental state during their lengthy dealings with him. There is no doubt that Officer Vine had the best of intentions, he acted in good faith and he conducted himself professionally according to his understanding of the powers of arrest. He definitely possessed an earnest subjective belief that Mr. Ramnath was driving while impaired. There must however, be an objectively discernible constellation of factors to support that subjective belief.

[33] In the absence of any smell of alcohol prior to Mr. Ramnath's arrest or any additional information about when he consumed any alcohol or the amount of alcohol, the collection of other observations was equivocal and could have just as easily been attributable to him being tired and lost. Moreover, I have to consider that two independent police officers dealing with the same detainee shortly thereafter did not form subjective beliefs that there were sufficient grounds to continue the arrest of Mr. Ramnath. There were certainly sufficient grounds to form a reasonable suspicion that Mr. Ramnath had been operating a motor vehicle with alcohol in his system. If Officer Vine had detained Mr. Ramnath without handcuffs pending the arrival of the police, there could have been no Charter complaints. In these unique circumstances, I am not satisfied that Officer Vine's subjective belief was objectively reasonable. Therefore, the initial arrest of Mr. Ramnath by Officer Vine violated his Charter protected rights.

[34] Once the police arrived on scene, Officer Bison-Moser was entitled to initially rely on the detailed subjective grounds for the arrest related to him by Officer Vine which included his understanding that there was a smell of alcohol prior to the time of the arrest. PC Bison-Moser's conduct of independently re-evaluating the circumstances of Mr. Ramnath's arrest and forming his own subjective belief that there were insufficient grounds to make an arrest for impaired driving was both commendable and appropriate. PC Bison-Moser recognized that he possessed a reasonable suspicion to make a demand for a roadside breath sample so he only had the authority to detain Mr. Ramnath for the purpose of conducting a roadside screening test. These facts make this case distinguishable from the decision of R. v. Simpson that Counsel relied on extensively during his submissions.

[35] While the responding officers initially made the right choice to re-evaluate the grounds for Mr. Ramnath's arrest, they failed to recognize that they were continuing to treat Mr. Ramnath as though he was lawfully in police custody for a criminal charge. They ought to have realized that their authority to detain him and the manner of his detention was limited to an investigative detention for the purposes of a roadside screening test. Neither of the police officers could provide any reason to justify why handcuffs remained on a coherent, cooperative and respectful detainee who they only suspected of having alcohol in his system while operating a motor vehicle.

ii. Case Law Addressing Unnecessarily Handcuffing Detainees

[36] The Charter violations in this case were not limited to Officer Vine's initial unlawful arrest. Rather, they involve a broader consideration of the constitutional integrity of use of force options with detainees who are not even suspected of committing crimes. In R. v. Aucoin, 2012 SCC 66, the Supreme Court acknowledged that the law surrounding police powers in the detention context was still "evolving". The following year, the Ontario Court of Appeal provided more direction about police powers with respect to searching and handcuffing suspects during an investigative detention in R. v. Byfield, 2013 ONCA 420. While the decision is broadly worded, the context of the Court's decision was the investigation of a weapons offence which presents different concerns and safety issues than the standard drinking and driving investigation.

[37] In the past 5 years, there have been a number of informative and unequivocal decisions that have specifically addressed the issue of handcuffing detainees during the course of a roadside investigation for the purpose of administering roadside screening tests. To cite a few of the more recent decisions, I have reviewed and considered: R. v. Orde – this decision was from this region; R. v. Romaniuk and R. v. Mahipaul.

[38] These cases have provided the police with significant guidance and have repeatedly emphasized the unique consideration with this type of investigation that these motorists are being detained by police even though they are not suspected of committing a crime. Rather, the police need only suspect the person of having alcohol in their system while operating a motor vehicle which, in itself, is not a crime unless a person is impaired or has more than the legal limit in their system. As a result, Courts in Ontario have been very sensitive to the manner in which police interact with detainees during roadside breath testing. Numerous jurists in Ontario, as well as other provinces, have narrowly constrained the authority of the police to use handcuffs before a person has been arrested for drinking and driving. Justice Stribopoulos helpfully reviewed some of these decisions and succinctly summarized the law in R. v. Virk, at paras. 53 to 57:

Although a motorist subject to an approved screening device breath demand validly made (i.e. a demand prefaced on the required grounds) is subject to lawful detention, such a motorist is not under arrest. Therefore, unless a motorist's conduct gives rise to objectively grounded safety concerns, for example, where the person's behaviour causes a police officer to reasonably believe they pose a threat to the police, the public, or themselves, it is not reasonably necessary to use handcuffs. Without reasonable justification, restraining a motorist in handcuffs during roadside breath testing is unlawful.

Even though a motorist subject to a valid approved screening device breath demand is lawfully detained, the use of handcuffs escalates the incursion on that person's liberty. Handcuffs represent a far more coercive form of state compulsion. If handcuffs are applied, they transform a detention that its inception takes the form of psychological restraint (with legal compulsion) into an encounter marked by physical restraint. If the police unjustifiably handcuff a motorist subject to an approved screening device demand, the result is an unlawful interference with that person's liberty. In such circumstances, a detention that begins lawfully becomes unlawful.

The Supreme Court of Canada has made clear that a detention not authorized by law is arbitrary and violates section 9 of the Charter. Given this, courts in other cases have found that the unjustified handcuffing by police during efforts to obtain an approved screening device breath sample violates a motorist's section 9 Charter not to be arbitrarily detained. If police also secure a breath sample while a motorist is unjustifiably handcuffed, these same cases also hold that the manner of the resulting seizure (or search), due to the unlawful use of handcuffs, is unreasonable and violates section 8 of the Charter.

Given my finding regarding the use of handcuffs, in light of the governing legal principles, I conclude that Mr. Virk's right not to be arbitrarily detained, as guaranteed by section 9 of the Charter, was violated.

[39] It is important to recall that when the Supreme Court of Canada upheld the constitutional integrity of the roadside screening process in R. v. Elias and Orbanski, 2005 SCC 37, the Court relied upon the minimal nature of the intrusion on the detainees' Charter protected interests:

… the effective regulation and control of this activity give rise to a unique challenge when it comes to protecting users of the highway from the menace posed by drinking and driving. This challenge arises from the fact that drinking and driving is not in and of itself illegal. It is only driving with an impermissible amount of alcohol in one's body, or driving when one's faculties are impaired, that is criminalized. The line between the permissible and the impermissible is not always easy to discern, and the necessary screening can only be achieved through "field" enforcement by police officers. It follows that these officers must be equipped to conduct this screening, though with minimal intrusion on the individual motorist's Charter rights.

Third, the challenge in this area of law enforcement is increased by the fact that the activity in question is ongoing and the drinking driver who has exceeded permissible limits presents a continuing danger on the highway. The aim is to screen drivers at the road stop, not at the scene of the accident. Hence, effective screening at the roadside is necessary to ensure the safety of the drivers themselves, their passengers, and other users of the highway. Effective screening should also be achieved with minimal inconvenience to the legitimate users of the highway.

And further at paragraphs 46 and 47:

In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is "necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference" (p. 35).

Doherty J.A. provided a useful delineation of the scope of the police power to check the sobriety of drivers at the roadside in Smith where he stated that "a procedure cannot be reasonable ... unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee" (p. 73).

[40] To be clear, I am not suggesting or finding that handcuffing a detainee prior to obtaining a roadside breath sample will always render the manner of the seizure unreasonable or the nature of the detention arbitrary. For example, there may be circumstances wherein officers are faced with genuine concern for their safety because of the conduct of a detainee that may merit increased use of force options. The determination of whether a detainee's rights were breached at the roadside is focussed on the individual circumstances in each case while bearing in mind the larger context of the nature of the detention. In R. v. Campbell, Justice Nakatsuru observed at paragraph 123 that:

The important question is whether on the totality of the circumstances, was the handcuffing reasonably necessary for the police to fulfill their duty? Furthermore, even if handcuffing was initially reasonable, if it continued for any duration (for example, after a pat-down search was completed), was the continued handcuffing justified.

[41] The totality of the circumstances in this case includes evidence that Mr. Ramnath was not belligerent, uncooperative, impolite or difficult in any manner at any point with either the Nuclear Security officers or the Durham Regional police officers. He did not present as an individual who was a flight risk, public safety risk or an officer safety concern. Moreover, the initial application of the handcuffs arose from an arbitrary arrest which the more experienced and better trained police officers quickly realized shortly after they began interacting with Mr. Ramnath. In light of PC Bison-Moser's reasonable suspicion, he was both entitled and professionally obliged in the interests of public safety to continue the investigation and detain Mr. Ramnath in order to perform the roadside screening tests. Nevertheless, the coercive physical restraint of continuing to keep the handcuffs on Mr. Ramnath was completely unnecessary. The original breach of Mr. Ramnath's section 9 Charter protected rights was significantly exacerbated by the arbitrary continued application of handcuffs and the unreasonable manner in which the police officers obtained the roadside breath tests by keeping Mr. Ramnath in these restraints. This interaction at the roadside with a person who the police only suspected of having alcohol in his system can hardly be described as a "minimal inconvenience" to users of the roadway that was contemplated by the Supreme Court of Canada.

[42] Both PC Bison-Moser and PC Delaney, the coach officer, agreed that they were aware that suspects who are detained for roadside breath tests are not normally handcuffed. Yet, neither one turned his mind to removing the handcuffs once they realized that there were insufficient grounds to continue the original arrest of Mr. Ramnath for impaired driving. The fact that the officers would have been entitled to handcuff Mr. Ramnath after he registered a fail on the ASD does not attenuate this arbitrary and unreasonable use of coercive force prior to a lawful arrest by the police.

[43] The Applicant has established that (1) the initial arrest was unlawful, (2) the manner of his detention by police was arbitrary and (3) the manner in which the roadside breath samples were obtained was unreasonable. As a result, I find that the officers breached Mr. Ramnath's section 8 and section 9 Charter protected rights.

iii. Section 24(2): Whether to Exclude the Roadside Breath Sample and the Breath Readings?

[44] The Ontario Court of Appeal's decision in R. v. Jennings, 2018 ONCA 260 certainly provided trial courts with clear direction with respect to not excluding evidence of breath readings following a finding of relatively minor section 8 breaches in drinking and driving cases. However, the breadth of the language used by the Court of Appeal has been interpreted by some Courts as a dramatic change in the analytical approach to whether to exclude evidence of breath readings in drinking and driving cases regardless of the nature or number of Charter breaches.

[45] For example, the Court of Appeal specifically found that restrictions on a person's liberty following an unlawful arrest does not alter the determination that the process of obtaining a breath sample is minimally intrusive. The Court was well aware that Mr. Jennings was subjected to an arrest process which included being handcuffed, confined in the back of cruiser and at the station prior to the breath testing. The Court specifically stated at para 29 that:

Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge. [Emphasis mine]

[46] It is inconceivable that the Court of Appeal intended this language to mean that any breach of any Charter protected interest at any point during a drinking and driving investigation should automatically be considered to be minimally intrusive because the end result of obtaining a breath sample is a minimally intrusive interference with a detainee's privacy and liberty interests. To interpret Jennings so broadly would be an invitation to ignore other Appellate decisions, including decisions from the Supreme Court of Canada, which have focussed the 24(2) analysis on the nature of the privacy or liberty interest impacted, the specific Charter rights violated and the seriousness of the violation. Moreover, for the purposes of this decision, I note that the Court in Jennings specifically averted to the nature of the interference with a person's liberty interests that occurs after a "demand for a breath sample" has been made. The Court was not called upon to consider the nature of Charter violations that may occur as a result of the exercise of police powers during an investigative detention for a roadside screening sample which is the focus of my concern in this case.

[47] Over the past few months, there has been a dizzying series of conflicting trial court and appellate court decisions in drinking and driving cases about how Jennings should be applied in the context of breaches of other Charter protected interests or more than one Charter protected right. In R. v. Moniz, Justice MacLean engaged in an extensive review of the myriad of decisions and ultimately concluded at para. 112 that:

Having reviewed all of these cases, I conclude that it will fall to the Ontario Court of Appeal to give us further direction as to how the decision in Jennings applies, if at all, to the s. 24(2) analysis in a case where there is a s. 10(b) breach or where there are multiple breaches. I will therefore go back to first principles and approach the issues in this case by applying the law as set out in Grant. I turn now to the application of the balancing of the three branches of the Grant s. 24(2) analysis to the facts of this case.

[48] Busy trial courts are bombarded on a daily basis with Charter challenges during drinking and driving trials. The Ontario Court of Justice is grappling with the almost insurmountable challenge of wading through this growing morass of post-Jennings conflicting case law while still trying to deliver intelligible and considered decisions within a reasonable time of the completion of the trial. It is an increasingly difficult task that can only be remedied by more direction from either the Ontario Court of Appeal or the Supreme Court of Canada. In the meantime, Justice MacLean's invitation to return to first principles outlined by the Supreme Court of Canada in R. v. Grant is a helpful suggestion when addressing cases that involve multiple Charter breaches.

a. The Seriousness of the Charter-Infringing State Conduct

[49] Officer Vine arrested Mr. Ramnath without objectively reasonable grounds. There is no doubt in my mind that he acted entirely in good faith and that he sincerely believed that there were sufficient grounds to arrest Mr. Ramnath and to handcuff him pending the arrival of the police. The responding officers had more experience with this type of investigation. As a result, they diligently made an informed decision that they did not possess reasonable grounds to continue Mr. Ramnath's arrest even though there were sufficient grounds to detain him for roadside breath screening.

[50] I cannot say that either Officer Bison-Moser or Officer Delaney deliberately disregarded Mr. Ramnath's Charter protected rights. Quite the contrary, considering the steps that they took to remedy what they believed to have been an unlawful arrest, they initially demonstrated a laudable sensitivity to and awareness of their professional obligations. This conduct however, does not justify or mitigate the poor choices that followed. They both acknowledged that they knew suspects detained for roadside breath testing are not normally handcuffed. This was not a matter of institutional shortcomings or lack of training. Rather, these officers admitted that they simply did not turn their minds to this significant interference with Mr. Ramnath's liberty and human dignity. Despite these unusual circumstances, they both knew that they had an obligation to use only such force as was reasonably necessary in the circumstances. The period of time that Mr. Ramnath remained in handcuffs was both unnecessary and excessive. This ignorance of their professional duties cannot amount to good faith even though it was not malicious.

[51] The seriousness of the police conduct in this case may have been otherwise mitigated by Officer Bison-Moser's lack of experience. For example, in R. v. Virk, Justice Stribopoulos emphasized the officer's inexperience and that he "unwittingly exceeded the scope of his legal authority" when deciding that the police misconduct fell on the less serious end of the scale. The Court however, went on at paragraph 70 to state that "the involvement of a more experienced officer may have resulted in a different conclusion on this prong of the Grant analysis".

[52] PC Delaney is a "more experienced officer". He was specifically tasked with training and supervising this new officer. It should have been obvious to Officer Delaney that Mr. Ramnath's handcuffs should have been removed immediately after they recognized that there were insufficient grounds to continue his arrest. The police must be vigilant with ensuring that their resort to pre-arrest statutory powers is always done with a view to minimizing the intrusions on the motorist's liberty and security of the person. In this case, while the police made some efforts in that regard, they still failed in their constitutional obligation to ensure that Mr. Ramnath's liberty interests were not unreasonably or arbitrarily infringed. As a result, the seriousness of the police misconduct weighs in favour of excluding the evidence obtained from the ASD.

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

[53] In order to reduce and hopefully prevent the carnage caused by drinking and driving, the police are imbued with the authority to encroach on the liberty interests of motorists and engage them in roadside sobriety screening. These police powers however, are not limitless. There are both temporal and physical restrictions on the extent to which the police may intrude on a motorist's liberty interests. It must be emphasized that these motorists are only suspected of having alcohol in their system which, again, is not in itself a crime. This important consideration should be reflected in the manner in which the police interact with these individuals at the roadside. For example, the statutory and constitutional prerequisites that the ASD demand be made and the samples be taken forthwith ensures these encounters are relatively brief.

[54] The scope of justifiable police conduct will be determined by what is reasonably necessary in the circumstances of these interactions bearing in mind the expectation that it is to be a minimal intrusion on a detainee's liberty interests before they have been arrested. State agents applying handcuffs to a detainee is an inherently coercive physical restraint and a significant interference with a person's liberty and human dignity. Mr. Ramnath was coherent, polite and cooperative. Leaving him in handcuffs throughout his interactions with the police was both unjustifiable and needlessly degrading.

[55] I recognize that the Court of Appeal in Jennings, supra, considered similar restrictions on a person's liberty interest after they are unlawfully arrested but still arrived at the conclusion that the breath testing process was a minimal intrusion on a person's Charter protected interests. Nevertheless, I am focussed on the treatment of a suspect by police prior to a lawful arrest and prior to the formal breath demand. I found the following passages from the recent decision of Justice Moore in R. v. Zuniga-Pflücker to be particularly helpful when deciding this issue:

27 While I can understand how Jennings might be interpreted as requiring this factor to always favour inclusion in breath sample cases, I do not believe that in rejecting a perceived rule of automatic exclusion the Court intended to create a rule of automatic inclusion. This is particularly the case where, as here, a separate and distinct s. 9 violation has been found.

28 I pause to note that one of the reasons breath samples are seen as minimally intrusive is that, unlike blood samples, they do not cause the subject to experience any pain. If breath samples did routinely cause pain, I do not believe that either the Supreme Court of Canada or the Court of Appeal would have characterized them as minimally intrusive.

29 The Court is quite clear in Jennings that the liberty restrictions that normally accompany the provision of breath samples (arrest, detention and transport) are to be seen as minimally intrusive and ought not to weigh in favour of exclusion in considering the second Grant factor. The Court certainly leaves open the possibility that interferences with s. 9 beyond the norm might well, in a given case, weigh in favour of exclusion.

30 The Supreme Court of Canada has been very clear that s. 9 violations, including violations that arguably have less impact than the violations in this case, can significantly impact on the Charter-protected interests of an accused favouring the exclusion of evidence. For example, in R. v. MacKenzie the Court held:

The appellant's privacy interest in the contents of his vehicle is lower than the privacy interest attached to the contents of his home. Nonetheless, the public enjoys a reasonable expectation of privacy when travelling down a highway. Although the dog-sniff search impacted the appellant's Charter-protected privacy rights, the impact was moderate, due to the brief and non-intrusive nature of the search. Likewise, the breach of the appellant's s. 9 rights was of fairly short duration. But an arbitrary detention of any length, including a pat-down by police, has a substantial impact on a person's Charter-protected interests. The cumulative impact of these breaches, while not severe, was more than minimal.

31 Similarly the relatively brief detention and search of the accused in Harrison was characterized by the court as, "a significant, although not egregious, intrusion on the appellant's Charter-protected interests."

32 I find the s. 9 violations in this case had a significant, although not egregious, impact on the defendant's Charter-protected interests.

33 I find that this factor favours exclusion of the evidence, albeit not as significantly.

[56] I find that unnecessarily handcuffing a cooperative and coherent detainee from the time of his unlawful arrest at 4:20 a.m. and throughout the ensuing investigative detention by the police until 4:44 a.m. when he failed the roadside screening test is not minimally intrusive. Mr. Ramnath spent 24 minutes in the custody of state agents with his hands cuffed behind his back without just cause. The initial unlawful arrest was exacerbated by the unreasonable manner in which the roadside samples themselves were seized and the arbitrary nature of the detention. The intrusion on Mr. Ramnath's security of the person and human dignity was more than trifling or minimal. Accordingly, this factor also favours exclusion.

c. Society's Interest in an Adjudication on the Merits

[57] Consideration of society's interest in the adjudication of a case on its merits, the fact that the evidence sought to be excluded is both reliable and conclusive of the person's guilt and the ongoing public interest in preventing the death and destruction caused by drivers operating under the influence of more than 80 mg of alcohol in 100 ml of blood weighs heavily in favour of the admission of the evidence. This third prong of the Grant analysis also encompasses broader public concerns. For example, in R. v. Taylor, 2014 SCC 50, the Supreme Court of Canada recognized that:

It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, at para. 80, the public also has an interest in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences.

[58] The public clearly has an interest in ensuring that citizens who are detained as a result of a suspicion that they operated a motor vehicle with alcohol in their system are treated fairly and their human dignity respected absent justifiable cause for more significant restrictions of their liberty. Nonetheless, I acknowledge that this factor weighs in favour of the admission of the evidence.

d. Conclusion with Respect to the Admission or Exclusion of the Breath Readings

[59] This was a difficult case to balance the competing considerations because each of the officers were forthright and fair. None of the officers purposefully breached Mr. Ramnath's Charter protected rights. Hindsight often offers clarity to officers that is not available in the heat of the moment during an unfolding investigation. I believe that both Officer Bison-Moser and Officer Delaney would have interacted differently with Mr. Ramnath had they taken the time to reflect on how they were handling him. They simply did not turn their minds to the unreasonable manner of the seizure or the arbitrary nature of the detention. That being said, for all of the reasons outlined above and after balancing the three different considerations provided by the Grant analysis, I have concluded that the admission of the roadside breath sample and the subsequently obtained breath samples would bring the administration of justice into disrepute. As a result, this evidence is excluded from the trial.

D. Conclusion

[60] In the absence of any admissible evidence of Mr. Ramnath's breath readings at the time of driving, he is acquitted of the charge of operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood.

Released: December 5, 2018

Signed: Justice B.M. Green