R v. Shin – Ruling on Charter Application

Ontario Court of Justice

Date: April 12, 2019

Court Information

Between:

Her Majesty the Queen

— and —

Sung Kyung Shin

Ruling: Charter Application

Counsel:

• S. O'Neil, Counsel for the Crown
• T. Luscombe, Counsel for the Defendant

Before: Justice M.S. Felix

Table of Contents

I. Introduction II. Remedy – 24(1)

• A. The Test for a Stay
• B. Analysis: Stage One
• C. Conclusion: Stage One
• D. The Second Stage in Babos
• E. Balancing

I. Introduction

[1] The defendant is charged with impaired driving and "Over 80" arising from a police investigation on September 5, 2016. The Ontario Provincial Police (O.P.P.) were alerted to the defendant's driving by way of civilian report. He was investigated, arrested for impaired operation, and taken to a local police detachment. The defendant, as the applicant, applied for Charter relief relying on numerous Charter breaches.

[2] On February 25, 2019 I rendered a ruling concerning the Charter application: See R v. Shin, 2019 ONCJ 162. I found that the police breached s.10(b) by failing to facilitate access to a third party upon request of the applicant for the purpose of accessing counsel of choice. I found that the police arbitrarily detained the applicant at the police detachment because the officer in charge did not apply s.498 of the Criminal Code and presumptively held the applicant for a judicial interim release hearing because of a misapplication of the reverse onus provision (s. 515(6)). I found that the applicant was strip-searched as a direct consequence of his arbitrary detention at the Central East Correctional Centre (CECC). Finally, I found that a staff person at the CECC invaded the applicant's bodily integrity by injecting him with a substance via the use of a needle without his consent.

[3] I provided both parties with a written copy of my decision and provided an opportunity to provide supplementary written submissions focused on remedy. The applicant provided additional focused written submissions. The respondent declined the opportunity.

[4] For the reasons that follow, I order a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms.

II. Remedy – 24(1)

A. The Test for a Stay

[5] The applicant seeks a stay of proceedings pursuant to s. 24(1) of the Charter because of the cumulative impact of several Charter breaches. Counsel concedes that the "overholding", strip search, and injection circumstances do not engage trial fairness considerations but submits that the residual category is engaged.

[6] In R v. Babos, 2014 SCC 16 [Babos], the Supreme Court of Canada set out three factors to consider at paragraph 32:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[7] At paragraphs 35, 37, and 38, the Court explained the high standard required at the first stage of the analysis:

35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial -- even a fair one -- will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

37 . . . First, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example (see, e.g., R v. Keyowski, [1988] 1 S.C.R. 657), as does using the criminal courts to collect a civil debt (see, e.g., R v. Waugh (1985), 68 N.S.R. (2d) 247).

38 Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.

[8] I am satisfied that proceeding further in this prosecution would do harm to the integrity of the justice system.

B. Analysis: Stage One

[9] In the decision on the application I provided detailed findings. I will endeavor to summarize those findings rather than repeat them, with the purpose of explaining why the combination of Charter breaches requires the Court to respond with the extraordinary remedy of a stay of proceedings as the only just result.

1. Overholding

[10] The arbitrary detention in this case caused a chain of events with a significant impact on the applicant. But for this triggering event, the only sustainable Charter breach would have been the s.10(b) complaint. Clearly, a stay of proceedings would not be the appropriate remedy for that singular complaint. The arbitrary detention in this case caused the applicant to be held for a judicial interim release hearing and caused his detention for several days at the CECC.

[11] The arbitrary detention contributes to the conclusion that a stay of proceedings is the only appropriate remedy. There are three central reasons for this conclusion.

[12] First of all, the provisions of the Criminal Code dealing with officer in charge release have been in place for decades. This timeframe is sufficient for police officers to be trained and for police detachments to become equipped to address such releases (e.g. cash bail). Canada shares the longest undefended border in the world with the United States. A simple sharing of information concerning practices with other O.P.P. detachments (e.g. Niagara Region) might easily support the conclusion that a rational considered detention of a foreign national is not a unique event. Americans are detained, arrested, released, or held for judicial interim release every day in Canada. A simple checklist of considerations even approaching the analysis in R v. Price, 2010 ONSC 1898 would suffice.

[13] Second, the evidentiary record in this case supports a finding that even the experienced officers in this case lacked relevant training concerning the release provisions in the Criminal Code. It is also apparent that this particular police detachment was not equipped to address judicial interim release circumstances such as "cash bail". This is not an approach that can be condoned by a criminal court. Police detachments must be resourced so that police officers may perform their legal duty. It is simply not an acceptable answer to suggest, (as it was in this case), that the police detachment is not equipped to address these circumstances.

[14] Third, the issue of "overholding" has been examined by many courts: (See by way of example R v. Jutras, [2007] O.J. No 2396 (S.C.) [Jutras]; R v. Manuel, 2012 ONCJ 392; R v. Doyon, 2015 ONCJ 122; R v. Buttigieg, 2015 ONCJ 138; R v. Sukraj, 2015 ONCJ 260; R v. Sabatini, 2015 ONCJ 282; R v. Provo, 2015 ONCJ 311; R v. Sharma, 2016 ONCJ 598; R v. Rossi, 2017 ONCJ 433; R v. Fleming, 2018 ONCJ 843; and R v. Tran, [2018] O.J. No 3899 (C.J.). While each case is driven by unique circumstances, at times, a stay of proceedings has been the result. The issue of "overholding" is not novel, unusual, or unique.

2. Detaining Drinking and Driving Suspects

[15] Courts have sanctioned the detention of drinking and driving suspects where the officer-in-charge has conducted the relevant inquiries and made a considered decision to detain. As explained in the ruling on the application, the analysis performed in this case was deficient.

[16] Most circumstances where a drinking and driving detainee is detained involve detentions measured in hours at the police station until a responsible person arrives to take custody of an intoxicated person or a determination is made that the detainee is "sober". Often the evidentiary record reasonably supports a concern on the part of the police – that they are legally responsible for the detainee, and that releasing the person without sufficient care might cause harm to the individual. No rational individual wants an intoxicated person placed at risk. This is why these circumstances, on occasion, justify detention. Key to the analysis in such circumstances is the fact that the officer in charge has evaluated relevant circumstances including legal obligations in the Criminal Code and made an informed decision.

[17] The decision to hold the applicant for a judicial interim release hearing in this case was different. The decision was not informed by proper procedure and consideration of s.498 of the Criminal Code. This circumstance was compounded by earnest, but erroneous, reliance on a belief in presumptive detention.

3. The Officer in Charge

[18] Sgt. Mason presented as a conscientious, diligent, and professional officer-in-charge of the detachment. She approached her testimony with a refreshing frankness and clarity. Sgt. Mason and PC Naylor contacted the applicant's military commander in the United States so that he would not be viewed as AWOL. Sgt. Mason facilitated access to the American consulate. She stayed past the end of her shift to diligently ensure that the applicant was available for the WASH video bail court. She contacted the applicant's mentor in an effort to make arrangements for the applicant to have a surety present for a judicial interim release hearing. Factually, Sgt. Mason engaged her duties with earnest good faith. There was no malicious intent on her part. But this is not "good faith" in the Charter sense: See R v. Grant, 2009 SCC 32 at para. 75.

[19] Sgt. Mason honestly held a subjective view that the applicant's bare circumstances mandated his detention due to the application of a "reverse onus" test. For this reason she did not analyze the circumstances correctly. She held an incorrect understanding of her obligations under s.498 of the Criminal Code. Having regard to the length of time s.498 has been in place this failure cannot be sanctioned or excused by this Court.

4. Perpetuation of the Conduct

[20] The applicant argues that the problem of "overholding" is systemic. Certainly a search of legal databases for decisions will produce a multitude of "overholding" decisions with differing circumstances across Ontario and across Canada. The implications of the decision to detain must be contextualized. The impact of the "overholding" decision in this case led to medical testing without consent, strip-searching of the applicant, and unpleasant circumstances in his shared jail cell.

[21] Separate and apart from the general background of relevant cases criticizing "overholding", there is a specific peculiar history in this jurisdiction. During submissions the Court alerted counsel to R v. Rashid, [2009] O.J. No 957 (S.C.) [Rashid] – a summary conviction appeal from this jurisdiction. Rashid is a ten year-old decision from this jurisdiction. In Rashid, both the Summary Conviction Appeal Court and the Court of Appeal relied heavily on the fact of judicial condemnation of "overholding".

[22] The evidence of PC Naylor and Sgt. Mason adds to the systemic concerns. PC Naylor had heard of an American being released on $500 cash deposit but never witnessed it. Sgt. Mason testified that the detachment was not really equipped to deal with the circumstances that presented in this case (i.e., cash bail).

[23] There was no evidence presented on the application concerning the policies and practices of the O.P.P. concerning release. There was no evidence presented on the application to support the conclusion that procedures or approaches have changed since these events occurred in 2016. There is a reasonable basis for concern that these issues are systemic.

5. Strip Searching at CECC

[24] That the applicant was strip-searched upon admission to the CECC jail during his multi-day transport to and from the courthouse bail appearances is not surprising. The persons employed by the jail would have had no understanding of the circumstances – that the applicant had been arbitrarily detained.

[25] I am prepared to infer that strip-searching those who are admitted to the CECC is related to safety and security considerations. But this is probably risking overreach given the record produced on the application. There was no evidence from responsible persons at the CECC addressing the phenomenon of strip-searching at the jail. There was no evidence addressing why someone with the applicant's background might still present a risk necessitating a strip search. There was no evidence explaining why multiple strip searches occurred. There was no explanation grounded in the specific circumstances involving the applicant.

6. Medical Testing

[26] With respect to the s. 7 Charter breach there is a profound evidentiary vacuum. One would expect that there are ministry policies, procedures, and guidelines governing medical injections. One could envision circumstances where medical injections are thought to be integral to the safety and security of all prisoners: (e.g., if there was evidence that the CECC was dealing with a communicable disease outbreak). Certainly, one could envision procedures designed to address informed consent to such medical steps. In the ruling on the application I cited one court case by way of example. But, as outlined in the ruling on the application, there was no evidence addressing these issues. Given the lack of evidence, there is no basis for a trier of fact to draw reasoned inferences. Finally, given the strictures of judicial notice, the Court is unable to simply infer that these circumstances existed and applied to the applicant circumstances.

[27] Given this evidentiary vacuum, the evidence supports a concern that this conduct is systematically applied to all detainees. The only evidence on point was the hearsay statement attributed to the person administering the injection – that all who are admitted to the CECC must submit. Furthermore, why is there a standard form dealing with the procedure (filed as an exhibit) if this is an unusual circumstance?

C. Conclusion: Stage One

[28] With respect to the first stage of the analysis I find that it would be prejudicial to the integrity of the justice system to convict the applicant. In my view the combined Charter breaches offends ". . . society's sense of fair play and decency": Babos, at para. 35.

[29] I respectfully believe that the combination of breaches in this case would cause reasonable and informed members of our society to be concerned and offended: R v. Culotta, 2018 ONCA 665, at paras. 60, 62. Members of society would expect officers in charge of a station to know the proper approach to serious decisions such as detention. Members of society would be appalled to find out that a person charged (and presumed innocent) with a drinking and driving offence was required to receive an injection by an unknown person, with an unknown substance, for unknown reasons. This concern would be particularly acute given there was no option to decline the injection.

[30] The applicant was subjected to two strip searches, a non-consensual medical procedure involving an injection with a needle or syringe, and a stressful atmosphere in his cell at the CECC. These circumstances were a direct result of the arbitrary detention.

[31] Having balanced all of these considerations this Court is compelled to disassociate itself with the combination of Charter breaches in this case. Proceeding with the trial would lend judicial condonation to the police conduct and the conduct of the CECC. In my respectful view, this specific unique record reaches the rarefied status required: Babos, supra.

D. The Second Stage in Babos

[32] The Court in Babos described the approach to the second stage as follows:

39 At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[33] Given the significant prejudice to the integrity of the justice system, I find that there is no just remedy short of a stay of proceedings.

[34] I find that there is sufficient cause to order a stay of proceedings on the basis of the non-consensual injection alone. The maintenance of one's bodily integrity is a serious consideration in our society and in criminal law. In the absence of any record even attempting to justify or explain the circumstances, that an agent of the state would administer an injection without consent is startling. If I am in error, surely the combination of Charter breaches surely reaches the high standard required for a stay. The s. 10(b) breach potentially had an impact on trial fairness. But this breach could be remedied under s. 24(2) without resort to a stay of proceedings. The arbitrary detention caused by "overholding" led to strip-searching, non-consensual medical treatment, and other difficult circumstances for the applicant who was incarcerated for days at the CECC.

[35] There is no alternative remedy short of a stay of proceedings that will adequately dissociate the justice system from the combined Charter breaches in this case: Jutras, para. 55. In my view, a sentence reduction would not adequately address the magnitude of the combined Charter breaches.

E. Balancing

[36] A stay of proceedings is clearly justified based on the analysis of stages one and two of the test in Babos. The Court went on to explain the final step in the analysis in paragraphs 40-41:

40 Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. This Court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed (Tobiass, at para. 92). . . . In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these "clearest of cases", the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.

41 However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.

[37] I find that the analysis of stage one and two clearly mandates a stay of proceedings. If I were to consider the third stage -- balancing – a stay of proceedings would still be the only just result. In arriving at this decision I have considered the relative costs associated with a stay of proceedings: R v. Zarinchang, 2010 ONCA 286, at para. 60.

[38] I have considered that the applicant is an American citizen with no criminal record, a member of the United States military, and studying to become a medical doctor. His background does not significantly impact the balancing exercise.

[39] I have also considered the great public concern with the prosecution of drinking and driving offences. This concern has been extant for decades. New amendments took effect in December 2018 with the purpose of further addressing these concerns and enhancing protection of the public. While I have not provided a judgment on the merits, I am reasonably confident that the applicant is guilty of impaired operation. He drove along the 401 while impaired by the consumption of alcohol. By sheer luck, there was no accident and no one was hurt by his criminal conduct. This is serious criminal conduct deserving of punishment. As a result of the impugned conduct in this case I am prevented from protecting the public by way of a driving prohibition for example. I have also lost the ability to address deterrence.

[40] I have also considered how serious the Charter breaches are in this case. I have endeavored to carefully explain these circumstances in this judgment and the ruling on the application. The record tends to support a finding that this is a systemic concern. The medical testing scenario is of serious ongoing concern. Again, keeping in mind the record produced, there is no evident medical rationale for this approach and no explanation concerning how circumstances of non-consent are addressed. Finally, there is no evidence that this was a single circumstance, or that the medical treatment was required because of the applicant's citizenship or perceived medical status by way of example.

[41] With respect to the "overholding", the record outlined above supports a similar concern. There is no evidence that the issue has been addressed. There is once again at least support for the belief that this is still a going concern.

[42] For all of these reasons, staying this prosecution better preserves the integrity of the justice system.

Released: April 12, 2019

Signed: Justice M.S. Felix