ONTARIO COURT OF JUSTICE
CITATION: R. v. Shin, 2019 ONCJ 162
DATE: 2019·02·25
BETWEEN:
Her Majesty the Queen
— and —
Sung Kyung Shin
Ruling: Charter Application
S. O’Neil .................................................................................................. Counsel for the Crown
T. Luscombe ................................................................................... Counsel for the Defendant
Felix J.:
Table of Contents: R. v. Shin
I. Introduction. 3
A. Reasonable and Probable Grounds – ss.8 and 9 of the Charter 3
B. Access to Counsel – s. 10(b) of the Charter 4
C. “Overholding” – ss. 8 and 9 of the Charter 4
D. Circumstances at the Central East Correctional Centre (CECC) – s.9 of the Charter 4
II. Charter Application. 5
A. Introduction. 5
B. Onus. 5
C. Credibility and Reliability on the Charter Application. 5
The Applicant 6
PC Naylor 6
Sgt. Mason. 6
III. Section 8 – Reasonable and Probable Grounds. 7
A. Position of the Applicant and Respondent 7
B. Findings of Fact 7
C. Analysis. 8
Reasonable and Probable Grounds – The Law.. 8
Conclusion – Reasonable and Probable Grounds. 9
D. Conclusion. 10
IV. Section 10(b) – Access to Counsel 10
A. Position of the Applicant and Respondent 10
B. Findings of Fact 10
C. Analysis. 11
D. Conclusion. 12
V. Section 9 Arbitrary Detention – “Overholding” 12
A. Position of the Applicant and Respondent 12
B. Findings of Fact 13
C. Analysis. 13
Introduction. 13
The core features of the decision to detain. 14
a) Overholding simplicitier 14
b) Failure to conduct inquiries relevant to s.498. 15
c) “Reverse Onus” 15
d) Conclusion – “Overholding” 16
D. Conclusion. 17
VI. Section 9 – Continued Detention at the OPP Detachment 18
VII. Section 9 – Circumstances at the CECC.. 18
A. Strip Search. 18
B. Assaultive Conduct 19
C. Tuberculosis Injection. 19
The Applicant’s Evidence. 19
Agreed Statement of Fact 20
Analysis. 20
a) Finding. 20
b) Evidentiary Vacuum.. 20
c) The Test 21
d) The person administering the test 21
e) Test procedure. 21
f) Consent 22
g) Overarching Rational for TB Testing. 22
h) Conclusion. 23
- Other Charter-related complaints. 24
I. Introduction
[1] The defendant is charged with impaired driving and “Over80” arising from a police investigation on September 5, 2016. At 4:40 AM a civilian witness observed the defendant operating his motor vehicle on highway 401 eastbound. This witness noted that the defendant’s driving was erratic, slow, and that his vehicle was weaving in and out of his lanes. The witness contacted the Ontario Provincial Police via 911 and followed the defendant until the O.P.P. arrived to investigate.
[2] The attending police officer, PC Naylor, approached the defendant’s vehicle. He smelled an odour of alcoholic beverage coming from the vehicle. He had a conversation with the defendant and learned that the defendant had been drinking alcohol that night and had consumed a couple of drinks. When the defendant was asked to get out of his vehicle he was unsteady on his feet. He swayed while walking with the officer back towards his cruiser. Constable Naylor formed grounds and arrested the defendant for impaired operation at 5:09 AM. The defendant was given his rights to counsel, cautioned, and a breath demand.
[3] The defendant’s citizenship and place of residence is a significant factor in this proceeding. At the time of the allegations he was a citizen and resident of the United States of America. He was also a serving member of a branch of the United States military. Finally, he was also studying to become a medical doctor in Chicago. As part of his educational endeavors he was mentored and tutored in an area of specialty by a medical doctor who happened to live in Toronto. He was visiting this mentor and was staying with him at the time of the investigation. The car he was driving when stopped by the police belonged to the medical doctor. The car had personalized plates with the last name of the defendant’s mentor clearly disclosed.
[4] Sourced in these foundational circumstances, the defendant, as the applicant, alleged a series of Charter breaches and sought remedies under both s. 24(1) (stay of proceedings) and s. 24(2) of the Charter (exclusion of evidence).
A. Reasonable and Probable Grounds – ss.8 and 9 of the Charter
[5] The applicant submitted that the investigating police officer lack grounds to arrest for impaired operation thereby breaching ss. 8 and 9 of the Charter. I find that the respondent has established that PC Naylor possessed the requisite grounds. There is no Charter breach in relation to reasonable grounds.
B. Access to Counsel – s. 10(b) of the Charter
[6] The applicant submitted that the police breached s.10(b) of the Charter by failing to facilitate access to the applicant’s medical school mentor for the purpose of obtaining legal counsel. The applicant wished to speak to his mentor for the purpose of facilitating access to private counsel. He was confident that his mentor would facilitate access to private counsel. The applicant has established a breach of s.10(b) of the Charter.
C. “Overholding” – ss. 8 and 9 of the Charter
[7] The applicant submitted that the police breached ss. 8 and 9 of the Charter by failing to access him as a candidate for release pursuant to s.498 of the Criminal Code of Canada [Criminal Code]. Furthermore, the officer in charge of the station misapprehended s.498 of the Criminal Code and erroneously believed that she was mandated or required to detain the applicant for a judicial interim release hearing because of a “reverse onus”. The applicant has established that he was arbitrarily detained. The officer in charge of the station did not address the statutory obligations under s.498 of the Criminal Code. This is a breach of ss. 8 and 9 of the Charter.
D. Circumstances at the Central East Correctional Centre (CECC) – s.9 of the Charter
[8] As a direct result of the decision to detain the applicant, he was held for a judicial interim release hearing and ultimately transferred to the local jail after his video court appearance. At the local jail the applicant alleges that: (1) he was injected with a needle by a staff person without consent; (2) he was strip-searched; (3) he was threatened and assaulted by his cell mate; (4) his detention was prolonged because the Crown Attorney did not provide a clear position on release during judicial interim release appearances requiring several court appearances until release; and (5) duty counsel failed in his duty to provide legal advice.
[9] The applicant has established that a staff person at the CECC invaded his bodily integrity by injecting him with a substance via use of a needle without his consent. This is a serious violation of ss. 7 and 9 of the Charter.
[10] The applicant has established that he was strip searched as a direct consequence of his arbitrary detention. This is a breach of s.9 of the Charter.
[11] The applicant has established that his stay in his cell was stressful as punctuated by assaultive conduct perpetuated by his cellmate.
[12] The applicant has not established that the conduct of the Crown Attorney or duty counsel during the judicial interim release proceedings attracts Charter scrutiny.
[13] The submissions provided in advance of this judgment were necessarily speculative on the part of the applicant and respondent. Both sides will be given the opportunity to provide more focused submissions on remedy after receiving this judgment.
II. Charter Application
A. Introduction
[14] The parties requested a blended application and trial. The prosecution called a civilian witness concerning observed driving, the investigating officer PC Naylor, and the officer-in-charge Sgt. Mason[^1]. The defendant testified on the application only. The parties filed an agreed statement of fact touching on several issues. As the decision on the application is potentially dispositive of the trial, it is not necessary to address the applicant’s criminal liability at this time. I will focus on the Charter argument for the time being.
B. Onus
[15] The applicant has the evidentiary burden on a balance of probabilities to establish the alleged Charter breaches. As there was a warrantless seizure of breath samples in this case, the respondent has the burden of proving that reasonable grounds existed for the breath sample demand: R. v. Haas (2005), 2005 CanLII 26440 (ON CA), 76 O.R. (3d) 737 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 423; R. v. Bush, 2010 ONCA 554, at para. 13.
C. Credibility and Reliability on the Charter Application
[16] This application turns on the credibility and reliability of the applicant and the two police witnesses called by the respondent.
[17] With respect to the assessment of credibility issues on the Charter application, the principles pronounced in W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) do not apply. The guilt or innocence of the applicant is not being determined and the criminal standard of proof does not apply: (See the reasoning in F.H. v. McDougall, 2008 SCC 53; R. v. Ram, 2014 ONCJ 788; R. v. Korzh, 2015 ONCJ 738; and R. v. Khan, 2012 ONCJ 130.
[18] In the analysis that follows I have directed my mind to the burden of proof placed on the applicant concerning each alleged breach. In order to establish a breach, the evidentiary record must establish the alleged breach on a balance of probabilities. If the applicant fails to establish the alleged breach on a balance of probabilities I am obligated to dismiss the complaint. If the record is unclear or I am unsure as to factual findings then I am obligated to dismiss the complaint because the applicant would have failed to establish the necessary record on a balance of probabilities. If I prefer the evidence adduced by the respondent and that evidence erodes the foundation for a Charter complaint I would be obligated to dismiss the complaint.
[19] Addressing viva voce evidence from witnesses in particular, simple preference of a witness’ evidence may serve to establish the balance of probabilities burden. If I am unable to determine facts as between the applicant’s evidence and the respondent’s evidence (either or both police officers), I would be obligated to dismiss the Charter complaint as the applicant would have failed to establish the breach on a balance of probabilities.
1. The Applicant
[20] I found the applicant to be a credible witness. He is an American citizen and a serving member of the United States military. He was a medical student studying to become a medical doctor in Chicago. He was polite, cooperative, and direct with questioning from both counsel. The police officers viewed the applicant as mildly uncooperative on the night in question. This is most probably accurate. I have mild reliability concerns as a result of his level of intoxication. But in the end, on all of the evidence, I found him to be credible with some reliability issues that I will explain.
2. PC Naylor
[21] I found PC Naylor to be a credible witness. I had a relevant reliability concern around the issue of facilitating access to counsel fueled by my consideration of the applicant, PC Naylor, and Sgt. Mason’s evidence on point.
3. Sgt. Mason
[22] I found Sgt. Mason to be a credible witness. Her evidence was blunt and direct at all times. She exercised professional patience with repetitive questioning from defence counsel. Her evidence was probative on the right to counsel breach. Her frank and direct evidence on the “overholding” breach illuminated the erroneous basis for her decision to detain the applicant. She did not try to excuse or explain-away the basis for her decision in an exercise of ex post facto justification.
III. Section 8 – Reasonable and Probable Grounds
A. Position of the Applicant and Respondent
[23] The applicant submits that PC Naylor lacked reasonable and probable grounds to arrest the applicant for impaired operation. In written submissions the applicant concedes that PC Naylor possessed honestly-held subjective grounds, but submits that the subjective grounds are not objectively sustainable. Further, the applicant submits that Constable Naylor, in asking the applicant to get out of his vehicle for the purpose of evaluating potential indicia of alcohol consumption, unlawfully compelled the applicant to participate in the production of grounds. Finally, in several paragraphs of written submissions the applicant submits that there exists a multitude of alternative plausible explanations for the indicia of impairment relied upon by PC Naylor in forming grounds.
[24] The respondent concedes that there was a warrantless seizure of breath but submits that Constable Naylor’s subjective grounds are adequately supported on objective review.
B. Findings of Fact
[25] I accept the evidence of PC Naylor and find that he possessed the following grounds:
A civilian person called 911 to complain about the applicant’s driving;
The civilian person described the subject vehicle as “all over the road”;
The civilian witness provided the licence plate for the subject vehicle – a black BMW sedan;
The applicant’s vehicle was stopped in an odd area on the highway;
The vehicle bore the licence plate provided by the civilian witness;
Odour of alcohol emanating from the vehicle;
The applicant was the lone occupant of the vehicle admitted consuming alcohol – a “couple of drinks”;
The applicant appeared to be really tired;
The applicant’s eyes appeared glazed;
The applicant appeared confused and unsure of his location;
The applicant fumbled through his wallet while locating his driver’s license;
The applicant was very slow and lethargic in finding items in his wallet;
The applicant used his left hand to steady himself on the door while getting out of the vehicle; and,
The applicant swayed while he was walking back to the police cruiser.
C. Analysis
1. Reasonable and Probable Grounds – The Law
[26] The assessment of reasonable and probable grounds engages the following considerations sourced in case law:
Reasonable grounds to believe standard must be based on objective facts: R. v. Chehil, 2013 SCC 49.
While reasonable and probable grounds requires more than mere suspicion, the police are not required to establish a prima facie case or proof beyond a reasonable doubt: R v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.J. No. 12, at para.17 [Storrey]; Bush, at para. 37; R. v. Wu, 2015 ONCA 667, at para. 49 [Wu]; and R. v. Censoni, [2001] O.J. No. 5189 (S.C.), at para. 31 [Censoni].
The assessment of reasonable grounds has both a subjective and objective component. The subjective component involves assessing whether the police officer honestly believed the subject committed an offence: Storrey, at para. 16; R. v. Canary, 2018 ONCA 304 at para. 21 [Canary]; and R. v. Saciragic, 2017 ONCA 91, leave to appeal ref'd, [2017] S.C.C.A. No. 106, at para.16 [Saciragic]. The objective component involves assessing whether or not the police officer's asserted subjective belief is objectively reasonable based on the information known to the police officer at the time: Storrey, at para.17; R. v. Notaro, 2018 ONCA 449, at para. 34 [Notaro]; Canary, at para. 21; Saciragic, at para.16; and Bush, at para. 38.
The objective assessment involves asking whether a reasonable person, standing the shoes of the police officer, would have believed that reasonable grounds existed to arrest: Storrey, at paras. 16-17; and R. v. Gundy, 2008 ONCA 284 at para.42.
The objective assessment requires fact-based contextual analysis of the totality of circumstances, rather than parsing and dissecting the evidence piecemeal: Bush, at paras. 54-55; R. v. Lawes, 2007 ONCA 10, at para.4; and R. v. Williams, 2009 ONCA 35.
When examining the objective component it is important to consider the police officer’s training and experience including the inferences and deductions drawn by the police officer: Wu, at paras. 51-52; Censoni, at para. 36.
The assessment of reasonable grounds does not necessarily involve critiquing the quality of the investigation, the thoroughness of the investigation, nor the range of subjective questions that guided the investigation: Notaro, at para. 34; and Bush, at para.70.
In the drinking and driving context it must be recognized that police officers are making quick decisions at the roadside: R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75 (C.A.).
Specifically in the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: R. v. Wang, 2010 ONCA 435, at para. 17.
[27] I am satisfied that PC Naylor possessed subjective grounds for arrest and that those subjective grounds are objectively sustainable.
2. Conclusion – Reasonable and Probable Grounds
[28] I do not agree with the applicant’s submission that PC Naylor lacked grounds at first and then crystallized grounds solely based on the compelled participation of the applicant. The proper analysis of reasonable and probable grounds does not support resort to a compartmentalized bisection of fast-moving events contemplated by the applicant’s argument on this issue.
[29] That the applicant cites varied alternative explanations for indicia of impairment does not diminish the grounds articulated by PC Naylor. The analysis of reasonable and probable grounds does not involve piecemeal or myopic focus on singular grounds. Furthermore, detracting factors must be assessed in the context of the totality of the factual circumstances: Bush, at para 57; and Censoni, at para. 47. The investigating officer was not provided with the alternative explanations at the roadside by the applicant. It would be unreasonable to expect that he should have discerned those alternative explanations: Bush, at paras. 44, 50.
[30] The investigating officer was not required to second guess the apparent presence of indicia of impairment on the record presented in this application. I find that the investigating officer’s subjective opinion was objectively reasonable even in the face of other reasonable alternative explanations for the indicia of impairment: R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35, at para. 23.
[31] PC Naylor honestly possessed subjective grounds to arrest. He is not required to be correct in every assessment. He is not required to ex post facto negate the applicant’s explanations: Bush, at para. 70.
D. Conclusion
[32] Constable Naylor had reasonable and probable grounds for arrest. The applicant has not established a breach of the Charter.
IV. Section 10(b) – Access to Counsel
A. Position of the Applicant and Respondent
[33] The applicant concedes that rights to counsel were provided both at the roadside and back at the police detachment. The applicant focuses on the failure of the police to facilitate access to his medical school mentor as requested.
[34] The respondent submits that no specific request was made for counsel of choice notwithstanding the applicant was given his rights to counsel twice. Furthermore, he expressed no dissatisfaction with his consultation with duty counsel.
B. Findings of Fact
[35] The applicant testified that he was provided with rights to counsel at the roadside. At the police station he was again provided with his rights to counsel by PC Naylor. This occurred in vicinity of several police officers at a desk. He testified that he specifically asked PC Naylor to contact his mentor for the purpose of getting a lawyer. The applicant testified that he was aware that his mentor had several friends who were lawyers. He was unfamiliar with Canadian law. He was confident that his mentor would be able to access a lawyer for him. The applicant also testified that he provided the phone number and address for his mentor and his mentor’s adult son upon arrival at the police station. He also told the police that there was 24 hours security at their building and provided the number for the concierge in case the direct phone numbers did not produce results. The applicant testified that PC Naylor told him he would not contact his mentor and that his option was duty counsel or no lawyer. Given his unfamiliarity with Canadian law, the applicant testified that he reasoned it was better to speak to a lawyer than have no lawyer at all.
[36] Constable Naylor testified that he provided the rights to counsel twice – once at the roadside and again at the police station. The applicant said he did not have a lawyer and that he wanted to speak with duty counsel. The applicant said he had no one local to call and provided no phone numbers. Constable Naylor testified that he could not recall if the applicant asked to speak with his mentor specifically.
[37] Sgt. Mason testified that she did receive phone numbers for the applicant’s medical school mentor and his son. She testified that she called both numbers several times for the purpose of addressing the vehicle impoundment, for the purpose of getting more information about the applicant, and for the purpose of facilitating the availability of sureties for a bail hearing. Sgt. Mason testified that she did not recall the applicant asking her to contact his mentor directly for the purpose of obtaining a lawyer. She explained that PC Naylor was responsible for addressing access to counsel.
C. Analysis
[38] The law is clear that police officers should permit detained persons to contact third parties (e.g. spouse, parent, friend) if the purpose is to facilitate access to counsel: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; and R. v. Kumarasamy, [2002] O.J. No 303 (Ont. Sup. Ct).
[39] The analysis on this issue relies on an assessment of credibility and reliability. There was no objective evidence produced such as a video capture of the applicant’s interaction with police officers at the detachment (e.g. often referred to as a parade video in this jurisdiction).
[40] I believe the applicant’s testimony that he specifically asked to speak with his mentor for the purpose of accessing counsel of choice. I accept the applicant’s testimony that he took positive steps to access his only local contact for the purpose of facilitating access to a lawyer. I accept applicant’s testimony that he provided contact information for his mentor and his mentor’s son to see if they could help with a lawyer. The applicant was not a Canadian citizen. He was not a local resident. These were his main contacts in Canada. The applicant was residing with his mentor when visiting Toronto. The applicant was driving his mentor’s vehicle. Seeking the assistance of your local contact in a foreign country when you have been arrested makes common sense.
[41] The applicant’s testimony about providing contact information is corroborated by the credible and reliable testimony of Sgt. Mason. She confirmed that the applicant provided phone numbers for both his mentor and his mentor’s adult son. This is corroborative of the applicant’s position that the issue of contacting his mentor and his mentor’s adult son was raised. Sgt. Mason does not directly corroborate the applicant’s evidence that contacting his mentor was for the purpose of accessing counsel of choice. But it is at least some corroboration of the applicant’s testimony that he raised this issue when he arrived at the police station. Furthermore, it is significant that Sgt. Mason received not just the number for the registered owner of the vehicle (the applicant’s mentor), but his adult son as well. If the provision of information was purely in relation to her responsibilities associated with impounding the vehicle, there would be no reason to receive the mentor’s son’s contact information. Finally, Sgt. Mason testified that she viewed PC Naylor as responsible for dealing with the applicant’s access to counsel. She was not focused on this issue and did not recall the applicant raising this issue directly with her.
[42] I did not find PC Naylor to be an incredible witness, but his memory of the sequence of events is less reliable than the combined impact of Sgt. Mason and the applicant. He could not recall if the applicant asked to speak to his mentor. He only recalls the applicant requesting duty counsel. I do not find that this is what occurred.
[43] Having regard to the onus, the evidentiary record satisfies me on a balance of probabilities that the applicant did request access to his mentor for the purpose of facilitating access to counsel of choice.
D. Conclusion
[44] I find that the applicant has established a breach of s.10(b) on a balance of probabilities.
V. Section 9 Arbitrary Detention – “Overholding”
A. Position of the Applicant and Respondent
[45] The applicant submitted that the circumstances surrounding a decision to hold him for a judicial interim release hearing constituted “overholding” and arbitrary detention. The applicant argued that Sgt. Mason did not conduct relevant inquiries and misperceived relevant law in arriving at a presumptive decision of detention purely on the basis that the applicant was a citizen of the United States and was not ordinarily resident in the area. As a direct result of this decision the applicant was “overheld” in detention for days at a local jail instead of being evaluated for release as required by s.498 of the Criminal Code.
[46] The respondent relies on the fact that Sgt. Mason knew that the applicant was an American citizen, a member of the United States military, a resident of New York state, and that he attended school in Chicago. The respondent submits that Sgt. Mason reasonably believed that he would fail to appear given these circumstances.
B. Findings of Fact
[47] Sgt. Mason testified that there were several reasons why she made the decision to detain the applicant for a bail hearing:
The applicant was an American citizen with ties to the US military;
The applicant was heading to the border to report for duty with the US military;
The applicant was not a citizen of Ontario (Canada);
Imposing financial terms associated with officer-in-charge release was beyond scope at the police detachment level;
There were no ascertainable sureties;
She believed that the Criminal Code contained relevant restrictions such that the applicant was in a “reverse onus” circumstance and had to be held for bail; and,
Based on his citizenship and ties to the US military, in keeping with the Criminal Code, it was “beyond scope” to release him at the police detachment level.
C. Analysis
1. Introduction
[48] Sgt. Mason was the senior officer in charge of the detachment. While I find she was earnest, sincere, and professional in her duties, she misperceived relevant law and failed to conduct relevant inquires pursuant to s.498 of the Criminal Code.
[49] The central reason for detaining the applicant was Sgt. Mason’s subjective belief that the circumstances mandated that the applicant be held for a bail hearing given the “reverse onus”. While Sgt. Mason could not cite a specific section of the Criminal Code, I accept that as an experienced police officer she had a working knowledge of the legal concept of “reverse onus”. Rather than address the statutory framework in s.498 of the Criminal Code, Sgt. Mason simply adopted and imported the “reverse onus” considerations in s. 515(6) the Criminal Code.
[50] As a result of this threshold determination, Sgt. Mason did not conduct inquiries for the purpose of addressing s.498 of the Criminal Code. In fact, Sgt. Mason testified that she made no inquiries into the applicant’s connection, (or lack thereof) to the local community or his purpose for being in Canada.
2. The core features of the decision to detain
[51] The applicant was arbitrarily detained by Sgt. Mason in her capacity as the officer-in-charge of the detachment. There are three central factors integral to this finding:
a. That Sgt. Mason engaged in overholding simplicitier in the sense that there was no examination of the applicant’s suitability for release generally;
b. That Sgt. Mason failed to conduct any inquiry for the purpose of addressing her responsibilities under s.498 of the Criminal Code; and,
c. That Sgt. Mason erroneously concluded that the “reverse onus” provisions relevant to a judicial interim release hearing were binding upon her and mandated the applicant’s detention.
a) Overholding simplicitier
[52] Sgt. Mason was the “officer in charge” of the O.P.P. Whitby Detachment as defined in s.493 of the Criminal Code. I find that she was required to evaluate the applicant’s suitability for release under s. 498 of the Criminal Code.
[53] I rely on the summary conviction appeal decision of Durno J. in R. v. Price, 2010 ONSC 1898, at paragraph 93, to establish the parameters of the analysis:
93 While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.
[54] Sgt. Mason’s decision to hold the applicant for a judicial interim release hearing was not informed by the factors cited in Price. While I accept that the applicant’s level of intoxication was not irrelevant to Sgt. Mason, this is not a case where she premised detention based on her consideration of breath sample results: (See R. v. Isler, 2004 CanLII 34583 (ON CA), [2004] O.J. No 4332 (Ont. C.A.). While the applicant was mildly uncooperative perhaps due to his level of intoxication, this was not a factor cited by Sgt. Mason in support of detention.
b) Failure to conduct inquiries relevant to s.498
[55] Sgt. Mason had the discretion to detain or release the applicant. Section 498 of the Criminal Code required that Sgt. Mason conduct an analysis of the applicant’s release prospects. Sgt. Mason did not articulate a basis for detention to determine the identity of the applicant, preserve evidence, prevent the continuation of, or commission of an offence, or ensure the safety of a victim or witness. I infer that failure to attend court was at least a concern, but this concern was ancillary to the central belief that the “reverse onus” circumstances mandated detention. There was no particularized inquiry to support a risk of failing to attend.
[56] Sgt. Mason did not conduct any inquiry for the purpose of addressing her responsibilities under s.498 of the Criminal Code. Specifically, no consideration of the factors contained in s.498 occurred and therefore no consideration of a ladder of release occurred (e.g., summons s.498 (1)(a), promise to appear (498(1)(b)), or recognizance without deposit (s.498(1)(c) and (d)).
[57] To the degree that Sgt. Mason relied upon the fact that the O.P.P. detachment was not equipped or set up to address cash bail, it is important to emphasize that this is not a satisfactory answer to the responsibilities inherent in s.498 of the Criminal Code. The section has been in force for decades. A police service must equip officers-in-charge with the tools needed to address their statutory responsibility. This includes consideration of cash bail.
[58] Sgt. Mason’s evidence leads to the unavoidable conclusion that she conflated the law in relation to release by an officer in charge (s. 498 of the Criminal Code) and the reverse onus considerations relevant to some judicial interim release hearings (s. 515(6) of the Criminal Code). She honestly believed that the presumptive decision in the circumstances was to detain the applicant. Because of that erroneous perception, it is understandable and indeed logical that she did not assess the applicant’s suitability for release or make any relevant inquiries contemplated by s.498 of the Criminal Code. The analysis required by s.498 was not performed because of an overriding conclusion that the applicant must be held for “reverse onus” bail. In these circumstances, non-compliance with s.498 of the Criminal Code is objectively unreasonable: (See reasoning of the summary conviction appeal court in in R. v. Jutras, [2007] O.J. No 2396 (S.C.))
c) “Reverse Onus”
[59] Sgt. Mason honestly, subjectively, but erroneously, believed that the “reverse onus” provisions in the Criminal Code applied to the applicant.
[60] I agree with the respondent’s submission that it is not an error per se to have regard to the functioning of the judicial interim release provisions of the Criminal Code. I would not fault an officer in charge, familiar with the court’s approach to judicial interim release, for considering the fact that the person might be in a reverse onus circumstance at a judicial interim release hearing. This consideration could compliment, but not supplant, the required analysis under s.498 of the Criminal Code. I disagree with the respondent’s submission to this effect. The officer in charge must conduct the analysis under s.498 of the Criminal Code. It is not a complete answer to the responsibilities vested in the officer-in-charge under s.498 of the Criminal Code to suggest the accused would be in a reverse onus circumstance were there to be a judicial interim release hearing.
[61] Notwithstanding the submissions on point, I do not believe that the initial, subsequent, or final position of the Crown Attorney addressing a subsequent judicial interim release hearing informs the analysis to any significant degree. The Crown position on bail is not relevant to the issue of whether or not s.498 has been properly addressed.
[62] In a similar vein, the result of the judicial interim release hearing is also not probative. That a judicial officer fashions terms greater than or less than that contemplated by s.498 does not determine the analysis. The releasing Justice is not specifically charged with a review of the officer-in-charge decision. The releasing justice is addressing the considerations in s.515 and related bail provisions of the Criminal Code. The decision of the releasing justice is neither a condemnation nor approbation of the officer-in-charge decision. Presumably, Parliament was aware of the judicial interim release provisions of the Criminal Code in s. 515. Section 498 is a separate regime; a separate consideration. It is part of a series of provisions vesting statutory responsibility in police officers to consider release beginning at s. 493 of the Criminal Code.
d) Conclusion – “Overholding”
[63] The respondent relies upon a case to justify the conduct of the officer-in-charge in this case. With great respect to the analysis of the summary conviction court in R. v. Warling, 2017 ONSC 4326, and the deference accorded by the Court of Appeal at [2017] O.J. No 5665 (C.A.)[^2] I do not find this decision to be of assistance in this case. The Supreme Court of Canada in R. v. Antic, 2017 SCC 27, and the Superior Court of Justice decision in R. v. Tunney, 2018 ONSC 961, have refocused the judicial interim release hearing on the “ladder principle” of release and the proper evaluation of release. Furthermore, the abdication of police responsibility under s.498 of the Criminal Code has already been specifically addressed in this jurisdiction in the summary conviction appeal R. v. Rashid, 2009 CanLII 9745 (ON SC), [2009] O.J. No 957 (S.C.). [Rashid SC] The Court of Appeal specifically acknowledged the Charter principles inherent in pre-trial release in R. v. Rashid, 2010 ONCA 591. Both cases addressed an institutional problem. In Rashid the trial court found a breach of s.9 because of a police policy mandating detention for domestic violence cases without consideration of s.498. In that case, there was no bad faith, the detention was not long, and detention was otherwise objectively appropriate. Key to the result in Rashid was the finding by the trial judge that had the officer considered the criteria in s.498, detention would have been objectively sustainable. The summary conviction appeal Court held that the s.9 breach finding was sound. Further, the remedy granted and the denunciation by the trial justice was sufficient to convey to the police that an arbitrary policy of detention was not sanctioned: Rashid SC, at paras. 59-63.
[64] In this case, it is not objectively clear that detention was inevitable. While this analysis is understandably somewhat speculative, had Sgt. Mason conducted the appropriate review, given her apparent professionalism displayed in Court, she might well have fashioned a form of release. She could have learned of the (unchallenged) evidence from the applicant concerning his roots in Toronto, his connection to Toronto, and the frequent attendances in Toronto notwithstanding weekend military service. The applicant had money for a cash bail if requested. No one simply asked if he would return to court. No one canvassed with his military supervisor mechanisms to ensure his attendance. The applicant was a medical student and a member of the United States military with no apparent criminal antecedents.
[65] In my view, Sgt. Mason was obligated to at least canvass the considerations under s.498 -- at least turn her mind to the statutory framework. Ultimately, she had the discretion to release or detain. But that discretionary decision should have been informed by the considerations in s.498. The simple conclusion is that Sgt. Mason drove straight to a conclusion that “reverse onus” provisions mandated detention without consideration of s.498 of the Criminal Code.
[66] A number of circumstances occurred as a result of the arbitrary detention of the applicant: (1) he was detained in custody at the OPP detachment; (2) the Crown Attorney did not provide a clear position at the judicial interim release appearances; (3) he was detained in custody at the CECC; (4) he was strip- searched at the CECC; (5) he was subject to medical testing without consent; (6) his eventual release was delayed for days because of the Crown position and deficient legal advice provided by duty counsel; and (7) he encountered assaultive conflict with his cellmate. The applicant argues that all of these circumstances attract Charter scrutiny.
D. Conclusion
[67] The applicant has established on a balance of probabilities that he was arbitrarily detained when he was presumptively held for a judicial interim release hearing in these circumstances.
VI. Section 9 – Continued Detention at the OPP Detachment
[68] A natural result of the decision to detain the applicant meant that he was held at the OPP detachment. He appeared in bail court via video from the OPP detachment at a “WASH” court hearing and was remanded into custody.
[69] The applicant’s continued detention was a direct result of the decision made by the officer-in-charge. I have found that decision to constitute arbitrary detention. The arbitrary detention continued when the applicant was detained in the OPP detachment.
VII. Section 9 – Circumstances at the CECC
[70] As a result of the decision to detain the applicant, he was ultimately lodged at the CECC. He was strip searched, the subject of assaultive behaviour on the part of his cellmate, and subjected to medical testing without consent.
[71] I find that there is sufficient nexus between the decision to hold the applicant for judicial interim release hearing and the subsequent conduct in the institution. But for the erroneous decision on the part of Sgt. Mason, the applicant would not have been placed in the CECC. The intervening event of the bail appearance by video on a “WASH” court day did not sever the connection between the decision to detain and the subsequent events.
A. Strip Search
[72] The only evidence on point came from the applicant and the agreed statement of facts. The applicant was strip searched twice over three days as he was shuttled back and forth from the jail to the courthouse.
[73] It is acknowledged that strip-searching detainees upon admission to a custodial institution is generally sensible and necessary. The staff at the CECC were no doubt justified in searching the applicant. Unbeknownst to the staff at the CECC, the applicant had been arbitrarily detained. I find that strip searching on the heels of an arbitrary detention is unjustified and a breach of the Charter: R. v. Jutras, [2007] O.J. No 2396 (S.C.J.) (summary conviction appeal) at paras. 93-102 R. v. Clarke, 2003 CanLII 64244 (ON SC), [2003] O.J. No 3884 (S.C.) at para. 197; R. v. Provo, 2015 ONCJ 311 at para. 37; R. v. Manuel, 2012 ONCJ 392 at para.
[74] The applicant has established a breach of ss.8 and s.9 in relation to the unjustified strip search on the heels of the arbitrary detention.
B. Assaultive Conduct
[75] The applicant testified that he was struck by his cellmate. During cross-examination he essentially testified to an apprehended assault. There were no injuries. I did not find there to be a great distinction between being assaulted by his cell mate and being assaulted in the sense of the apprehension of the threat of assault or an attempted assault. I am satisfied that the applicant was not attempting to mislead the court on this issue or overstate the evidence. The applicant’s stay in jail with his cellmate was not a good experience. It was stressful and punctuated by this attempted assault I did not find this to be the watershed credibility moment that the respondent urged.
[76] The applicant did not specifically press this circumstance or assert a specific Charter breach directly connected to this circumstance involving a non-state actor. These circumstances are simply acknowledged as part of the over-arching s.9 Charter breach circumstances.
C. Tuberculosis Injection
[77] The applicant testified that a person at the CECC injected him with a substance without his consent. This startling testimony was not sufficiently or specifically addressed in the Charter application. The Court raised the issue with the applicant and received submissions concerning an appropriate remedy. The respondent was granted an adjournment to investigate the circumstances and determine a response to the allegation. The agreed statement of fact (exhibit 4) and a record documenting the fact that the medical circumstance in fact occurred (exhibit 5) was the result.
1. The Applicant’s Evidence
[78] The applicant testified clearly that he was taken to a particular person in the jail and he was injected with a substance. He did not recall that the person told him what the shot was for. She did not clarify specifically what the shot was for. He did not know the specific employment title or qualifications that the person held. He was aware that she was not dressed in the same uniform as the correctional officers.
[79] The applicant testified that he asked about the purpose of the injection. He was told that it was for medical purposes. He conveyed that he did not wish to be injected with any substance and asked if he could withhold consent. He was told that everyone entering the jail had to get the injection and that he could not withhold consent. He ultimately submitted to the procedure without providing consent either verbally or in writing.
2. Agreed Statement of Fact
[80] The parties formalized an agreed statement of fact marked as exhibit 4 on the application. It is agreed that the applicant’s testimony is correct. It is agreed that the applicant was given a “shot with a syringe in his left arm to administer a test for tuberculosis”. The applicant did not sign any consent or medical waiver.
3. Analysis
a) Finding
[81] I find as a fact that the applicant was given a shot involving a syringe or needle in his left arm to test for tuberculosis. This was done without the applicant’s consent, informed or otherwise. In my respectful view, based on the record produced on this application, this was a serious invasion of the applicant’s bodily integrity: R. v. Grant, 2009 SCC 32 at paras. 103-114. The applicant has proven a very serious breach of s.7 of the Charter.
b) Evidentiary Vacuum
[82] In arriving at this decision it must be emphasized that there was an evidentiary vacuum in the record produced on the application. There is no evidence addressing the following issues or factors:
The specific identity of the person at the jail who interacted with the applicant and administered the needle;
The qualifications, training, and employment designation of the person at the jail;
The medical safety and sanitary precautions employed by this person;
How the issue of informed consent is addressed by the institution;
Whether or not there is provision for a detainee to withhold consent;
Whether or not the applicant provided verbal consent to the procedure;
Whether or not the applicant’s non-consent was informed by detailed information concerning the procedure;
Whether or not there is a medical risk associated with the procedure;
The specifics of the substance injected into the applicant;
Whether the Superintendent of the CECC (or his or her designate) holds a reasonable belief that the medical procedure in this case is sanctioned by law or policy;
The Ministry of Community Safety and Correctional Services policies and procedures around medical procedures or medical treatment in general; or,
The Ministry of Community Safety and Correctional Services policies and procedures around the control of communicable diseases in general and tuberculosis in particular.
[83] The absence of evidence in these areas was a key consideration in the finding of a breach.
c) The Test
[84] The applicant was given an injection using a syringe or needle. The agreed facts stipulate this was a test for tuberculosis. There is no evidence of what the substance was or the volume of substance injected into the applicant. Based on the evidence provided by the applicant and the agreed statement of fact I find that a syringe or needle penetrated the skin of the applicant and thereby interfered with his bodily integrity.
d) The person administering the test
[85] The person who administered the procedure was not called as a witness. There is no evidence that this person was in fact a nurse (or other trained medical professional). The applicant testified that the person did not appear to be correctional employee but several persons were switching seats in the area where the test was administered. There is no evidence as to the specific identity of the person, their employment details or training. Even the name of this person is not discernable on Exhibit 5.
e) Test procedure
[86] There is no evidence concerning the procedural steps or precaution exercised to ensure that the violation of the applicant’s bodily integrity was medically safe and sanitary. By imperfect analogy, I consider the procedural protections and circumstances surrounding the obtaining DNA samples pursuant to court order in this courthouse or the procedures followed in aide of securing a DNA sample pursuant to a DNA warrant. The respondent argues that a “TB skin test likely falls” within the institution’s statutory responsibility. This is speculation. First of all, there is no evidence as to what the tuberculosis test involves. The agreed statement of fact corroborates the applicant’s evidence that the applicant was given a needle. A needle punctures the skin. There is no evidence of what was specifically injected into the applicant.
f) Consent
[87] The applicant was crystal clear that he did not wish to have an injection and asked if there were alternatives. There is no evidence that alternative options were presented to him. The applicant is studying to be a medical doctor and I accept his testimony that he was concerned about the procedure and asked about alternatives. He did not consent to this procedure.
[88] The respondent argues in paragraph 51 that the absence of a signed waiver or consent form is not proof of the absence of consent and that it is highly unlikely that such consent is needed in an institutional setting or medical setting. This submission is without foundation probably dead wrong. In medical settings informed consent is a constant presence. In an institutional setting whether or not it is present is unknown – there is no evidence on the issue. The only evidence on this issue is the viva voce evidence of the applicant that he did not want to submit to the test and he was told that he must.
g) Overarching Rational for TB Testing
[89] It is important at the outset to recognize that trier-of-fact may access common sense and life experience to draw reasonable inferences. But the reasonable inferences must be sourced or premised upon an evidentiary record sufficient to support such inferences. The insufficient evidentiary record gutted many of the inferences relied upon by the respondent in written submissions.
[90] The respondent argues in paragraph 41 of written submissions that correctional institutions must provide a medical examination. This may be so. But what is not clear is that a “medical examination” includes injecting or administering medicine or substances to an inmate. It is also not clear that the institution may do so without informed consent.
[91] The respondent argues in paragraph 43 of written submissions that tuberculosis remains a “significant public health problem” in Ontario. There is no evidence in support of this assertion. The respondent cites information from a government ministry and protocol in paragraph 47. There is no evidentiary record in support and this is not properly the domain of judicial notice. The respondent relies on R. v. Kravchoc, 2002 CanLII 79565 (ON CJ), [2002] O.J. No 2172 (C.J.), but in that case a correctional officer was called as a witness to provide the foundational facts. I do not have that record nor may I simply adopt a record presented in a 2002 court case.
[92] The respondent argues in paragraph 50 that there is no evidence that the TB skin test is a systematic or standard practice. The applicant testified that the person who administered the test told him that everyone has to submit upon admission. This submission cuts both ways. If the applicant was subjected to this procedure singularly, randomly or for some other unknown reason, it hardly assists the respondent’s position.
h) Conclusion
[93] This Court is obliged to render a decision based on the record. An adjournment of the application was provided. Both the applicant and the respondent had time to amplify the record. The parties provided an agreed statement of fact. As the trier-of-fact it is not the Court’s role to look behind the evidentiary record or the decisions of counsel. I am obligated to accept the record provided and assess the evidence based on the record provided.
[94] I have reviewed a civil litigation case Drougov v. Ontario, [2009] O.J. No 2097 (S.C.), where G.R. Strathy addressed a civil claim for battery against staff at the Toronto West Detention Centre. In that case the Court noted that there was an official ministry policy in place to address the serious issue of tuberculosis and to prevent the spread of the disease. Furthermore, the Court received evidence that an inmate could refuse to consent and the steps followed in such circumstances. Of course, I have no such record before me in this case. And I may not take notice of the factual circumstances placed before a different court ten years ago. I cite this case simply to demonstrate that a record on the issue was potentially available.
[95] There may well be a problem with communicable diseases at the CECC. It is possible that a medical nurse is tasked to address the laudable aim of preventing the spread of communicable disease. A nurse may even have a specific directed employment stipulation in this regard informed by Ministry policy and statutory duty. But there is no evidence for me to weigh in the balance on this issue. As a result, the evidentiary record presented is heavily dependent on the applicant’s testimony.
[96] The respondent’s record lacks context and detail. It does not involve evidence from the person at the CECC who performed this medical task. It does not involve any evidence concerning efforts around the medical health and safety of those who are imprisoned. There has been no justification presented for this practice. No evidence called from the responsible parties at the institution or the relevant government ministry.
[97] One might well imagine that there are good and rational reasons for the approach. There could be a reasonable justification for the practice including the protection of prisoners from disease. I may not, however, use imagination or speculation to determine factual findings. My domain is evidence and that which is accessible byway of reasonable inference.
[98] On the record presented there is no explanation or rational reason for this approach. On the record presented I do not know if there was (for example) an urgent medical need for the approach or if this is just the standard practise. I note that the respondent argues that there is no evidence of this being a standard practice. Does this mean that the applicant was singled out? Was there a reason to single him out? I do not know if the approach was mandated because the applicant was not ordinarily resident in Canada for example. I do not know if an assessment was performed prior to making the decision to subject the applicant to this procedure.
[99] On the record presented, a serious breach of the bodily integrity of the applicant was performed by a state actor without any consent from the person subjected to the procedure. There was not even an attempt to obtain informed consent from the applicant according to the record produced on this application.
[100] With great emphasis on the record presented, the applicant has established a spectacularly serious invasion of the bodily integrity. This is a very serious breach of the applicant’s s. 7 Charter rights.
4. Other Charter-related complaints
[101] Some of the applicant’s Charter-related complaints may be summarily dismissed. While it would be preferable for Crown Attorney’s to clearly articulate a position as to release at judicial interim release hearings, any deficiency in this regard does not attract Charter scrutiny. It was not unlawful for the Crown Attorney to state conditional release terms when no plan of release was being proposed by the applicant.
[102] The applicant is critical of the conduct of duty counsel during the judicial interim release process. One notable allegation is that the duty counsel encouraged the applicant to plead guilty to obtain release. The applicant is a foreign national demonstrably unfamiliar with criminal law in Canada. No evidence was presented from the duty counsel involved. In the end, the applicant’s hearsay evidence alone did not establish a satisfactory record for the Court to evaluate.
[103] The actions of the Crown Attorney and Duty Counsel do not attract Charter scrutiny.
Released February 25, 2019
Signed: “Justice M.S. Felix”
[^1]: The credibility and reliability of the civilian witness is not relevant to the Charter application. PC Naylor did not speak directly to this witness and only received information apparently sourced from this witness via dispatch.
[^2]: The Court of Appeal deferred to the findings of fact and law made by both the trial court and summary conviction appeal court.