Court File and Parties
Ontario Court of Justice
Date: July 10, 2019
Court File No.: Central East-Newmarket-4911-998-16-90000322
Between:
Her Majesty the Queen
— and —
John Elgas
Before: Justice A. A. Ghosh
Heard on: March 14, June 7, July 10, 2019
Reasons for Ruling on Charter Application and Judgment
Released on: July 10, 2019
Counsel:
- P. Hsiung, counsel for the Crown
- A. Sondhi, counsel for the defendant John Elgas
Ghosh J.:
Overview
[1] John Elgas was tried before me for driving while disqualified and while having an excess blood alcohol concentration, contrary to the Criminal Code. Two officers were conducting observations near a motel, as they believed Mr. Elgas was staying there and driving a particular vehicle contrary to a Criminal Code driving prohibition and multiple suspensions. The officers observed a vehicle matching the description to leave the motel parking lot and proceeded to pull it over. Mr. Elgas was the driver and he was arrested for driving while disqualified.
[2] One of the officers searched the vehicle, while the other informed the defendant of the right to counsel and caution. The informing officer smelled an odour of alcohol from Mr. Elgas and made an approved screening demand. The defendant failed the screening test and was arrested for the second offence of "over 80". He was read the caution and approved instrument demand, but was not provided again with the right to counsel for the second offence. Mr. Elgas indicated that he did not wish to consult counsel both at roadside and later at the station.
[3] Mr. Elgas submitted that the police violated his Charter rights protected by sections 8, 9 and 10(b). It is specifically submitted that the officers violated the applicant's s.9 freedom from arbitrary detention by stopping the vehicle before ascertaining driver identity, particularly given that it was registered to someone else. It is further submitted his s.8 freedom against unreasonable search and seizure was violated by the unwarranted search of the vehicle, producing open liquor containers that were not led at trial.
[4] Finally, the s.10 right to counsel was allegedly violated by the police failure to explain it further due to the submitted lack of comprehension and by failing to advise the applicant again of the right to counsel after the jeopardy changed upon the "over 80" arrest. Accordingly, it is submitted the readings should be excluded pursuant to section 24(2) of the Charter.
[5] The defendant also submitted that the breath tests were not taken "as soon as practicable". Finally, it was submitted that evidentiary exclusion or a stay of proceedings pursuant to s.24 of the Charter should result in the end of the driving while disqualified prosecution.
Analysis
[6] The following issues require determination:
i. S.8 Charter Freedom from Unreasonable Search and Seizure: Did the police unreasonably search the vehicle without lawful authority?
ii. S.9 Charter Freedom from Arbitrary Detention: Did the police arbitrarily detain the applicant by stopping the vehicle pursuant to a driving while disqualified investigation without first identifying the driver?
iii. S.10(b) Charter Right to Counsel:
- a. If the applicant failed to express comprehension of the right to counsel, did the officer fail to satisfactorily re-explain the right?
- b. Did the police violate the applicant's right to counsel by failing to repeat the right after the jeopardy changed from driving while disqualified to the additional offence of "over 80"?
iv. Charter remedy: If the applicant's Charter rights were violated, should the breath readings be excluded pursuant to s. 24(2)?
v. As soon as practicable: Were the breath samples taken as soon as practicable?
vi. Driving while disqualified: Is there a defence on the merits? If not, is there a Charter remedy that will result in the end of the prosecution?
Section 9 of the Charter: Arbitrary or Investigative Detention?
[7] Section 9 of the Charter affords everyone the right not to be arbitrarily detained. The traffic stop here was not arbitrary. Firstly, it was based on a reasonable suspicion of criminal activity. The officers stopped the vehicle as they reasonably suspected it was being operated by a prohibited driver. Secondly, there was also authority under the Highway Traffic Act to conduct the traffic stop.
[8] I will begin with the detention for criminal conduct. In order for the police to stop a vehicle to investigate a criminal offence unrelated to highway safety, they must have reasonable grounds to suspect the driver is involved in criminal activity. The detaining officer must possess a reasonable suspicion that the individual is involved in a recent or on-going criminal offence, and the suspicion must be reasonable based on the totality of the circumstances. The detention must be brief and necessary: R. v. Mann, R. v. Gardner.
[9] Several facts contributed to a reasonable suspicion that the operator of this vehicle was driving while subject to a Criminal Code driving prohibition. The officers were conducting surveillance on a motel parking lot, as they had information that Mr. Elgas was a prohibited driver and was operating a particular vehicle out of that location.
[10] It is true that the officers could not identify the driver before conducting the stop. However, the police had information associating Mr. Elgas with the motel and a green Honda CR-V with a particular licence plate number. The police also knew that he regularly drove it. In those circumstances, for the purposes of investigative detention, it is of no moment that it was possible that someone else could have been driving it and that Mr. Elgas was not the registered owner.
[11] Constable Van Loenen identified a vehicle matching the description leaving the motel parking lot. Constable Chilvers then confirmed the licence plate of the suspect vehicle associated with the applicant. Only then was the vehicle stopped. The in-cruiser camera recording supported that the licence plate was within the officer's view by the time the cruiser's roof lights were activated.
[12] The detention before arrest was momentary. Upon attending the driver's side window, Constable Van Loenen recognized Mr. Elgas right away as the suspected prohibited driver through a previously viewed mug shot. This immediately formed the officer's ground to arrest for driving while disqualified. The very brief detention turned into a lawful arrest in that moment.
[13] Given that the police had information that Mr. Elgas was a prohibited driver associated with a particular vehicle and motel, and they then stopped that very vehicle leaving the motel parking lot, the traffic stop was not arbitrary. There was no section 9 violation given the reasonable suspicion to detain.
Section 9 of the Charter: Authority to Stop Under the Highway Traffic Act
[14] Two of the investigating officers conceded during cross-examination that they were investigating a criminal offence, while one of them mentioned that they were also investigating Mr. Elgas for driving while provincially suspended. While I have found a reasonable suspicion to ground an investigative detention, I also find the police had independent authority to stop the vehicle pursuant to the Highway Traffic Act.
[15] As mentioned, our appellate courts have confirmed that the police only require a reasonable suspicion to stop a vehicle for criminal conduct if the suspected criminality is unrelated to highway safety: R. v. Gardner, supra, at paragraphs 22-23.
[16] Investigating and stopping suspended and prohibited drivers is related to highway safety. Consequently, if I have erred in finding that the police had a reasonable suspicion supporting an investigative detention, the police independently had authority under the Highway Traffic Act to stop the vehicle.
[17] Pursuant to section 216 of the Highway Traffic Act, the police "in the lawful execution" of their "duties and responsibilities" may require a motorist to stop. I will not attempt to define the scope of these "duties and responsibilities". However, the law has long held that within the context of the Highway Traffic Act, these duties include the responsibility to contribute to road safety by investigating and removing prohibited and suspended drivers from the road: R. v. Ladouceur.
[18] This is another reason that the traffic stop was not in violation of the applicant's section 9 Charter freedom against arbitrary detention.
Section 8 of the Charter: Reasonable Grounds to Search the Vehicle
[19] Section 8 of the Charter enshrines everyone's right to be free from unreasonable search and seizure. The search of the vehicle was ostensibly "incident to arrest" and without judicial authorization. The Crown must establish that the search was reasonable on the balance of probabilities: R. v. Caslake.
[20] Constable Van Loenen was only aware of grounds to arrest for driving while disqualified when he decided to search the applicant's vehicle "incident to arrest". He found two open containers of alcohol in the vehicle. While the search was carried out reasonably, the officer could not articulate a valid objective to ground the search of the vehicle. Mr. Elgas was already in custody for driving while disqualified, and a search of the vehicle could not reasonably yield evidence of the disqualification or contribute to officer safety.
[21] However, if there was a section 8 violation due to the search of the vehicle, nothing of substance turned on it. The vehicle had to be entered by Constable Van Loenen in order to move it out of the restaurant drive-through lane. At least one of the two alcohol containers were readily visible. Over a dozen beer bottle caps were strewn around the car.
[22] The open containers of alcohol were not tendered at trial. Constable Chilvers was away with the detainee during the search and had already independently developed a reasonable suspicion to issue the approved screening demand. He did not know about the alcohol containers when he made the demand.
[23] If the search never occurred, the applicant still would have been arrested and charged with both criminal offences. If there was a violation of the applicant's freedom from unreasonable search and seizure, none of the trial evidence could be excluded as a consequence. I will, of course, return to this in the s.24 Charter analysis.
Section 10(b) Charter Right to Counsel: Confirming Comprehension
[24] It is submitted that the applicant failed to convey his understanding of the right to counsel and it was thus incumbent on the police to explain the right further. I disagree.
[25] Upon arresting Mr. Elgas for driving while disqualified, Constable Chilvers read to him the standard right to counsel. This was captured on the in-cruiser camera recording. I find that the applicant expressed an understanding of the breadth of the right to counsel.
[26] As each key component of the right was read to him, Mr. Elgas confirmed comprehension by replying with the phrases: "OK", "Yes", "Right" and "Ya". At the end of the recitation of the right, when asked if he understood, the reply was "Yes, I understand." On the balance, this was a satisfactory demonstration of his comprehension of the right.
[27] The officer then asked the applicant if he wished to contact a lawyer right then. The reply was "Not right this immediate." This response does not derogate from his expression of comprehension of the right to counsel. There was no defence evidence led to undermine the clear expression of the applicant's comprehension of the fulsome right. No further explanation of the right itself was necessary.
[28] When he was then arrested for the "over 80" offence, the informing officer did not provide the right to counsel again. I will address this separately. I find that the staff sergeant at the station asked the applicant again if he understood the right to counsel and whether or not he wished to consult duty counsel or another lawyer. I also find that Mr. Elgas confirmed again that he understood his right to consult counsel and expressed again that he did not wish to speak to a lawyer.
[29] Insofar as the police are required to confirm comprehension of the right to counsel, this was satisfied on the balance of probabilities. In this regard, there was no violation of the informational component of the right to counsel.
Section 10(b) Charter Right to Counsel: Re-inform Upon Change of Jeopardy
[30] As noted, Mr. Elgas was read the fulsome right to counsel upon being arrested for driving while disqualified. Soon after that, Constable Chilvers smelled an odour of alcohol, issued an approved screening demand, and the applicant promptly failed the test. Constable Chilvers did not provide the right to counsel again after the arrest for driving with an excess blood alcohol concentration.
[31] I agree that the applicant's jeopardy changed upon the arrest for driving with an excess blood alcohol concentration. A minimum sentence and a mandatory s.259 driving prohibition was now on the horizon. Mr. Elgas would now face a demand to provide incriminating evidence against him.
[32] Given the change of jeopardy, the police were required to provide the right to counsel again, notably to consider advice regarding compliance with the approved instrument demand: R. v. Sinclair. Accordingly, I find a violation of the applicant's s.10(b) right to be re-informed of the right to consult counsel upon a change of jeopardy.
Readings to be Taken "As Soon as Practicable"
[33] S.258(1)(c)(ii) of the Criminal Code requires that the samples of breath be taken "as soon as practicable", and in the case of the first sample, within two hours of the time of the alleged offence. If this requirement is not satisfied beyond a reasonable doubt, the Crown cannot rely on the presumption of identity permitting the use of the breath test results as conclusive proof of the accused's blood alcohol concentration. Where this presumption is lost, in the absence of expert toxicological evidence, an acquittal must ensue.
[34] The leading authority on the "as soon as practicable" requirement is R. v. Vanderbruggen. This ruling confirmed that this "phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances… The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably." I instruct myself to consider the entire chain of events bearing in mind that the Code permits the outside limit of two hours from the time of driving to the first test. A "minute by minute" dissection of the time spent in police custody is not what is required.
[35] Counsel rightly conceded that this was not the strongest argument. In this case, approximately 1 hour and 13 minutes passed from the time of the traffic stop at 8:55 p.m. to the taking of the first breath sample at 10:08 p.m. The officers provided a reasonable explanation for the brief roadside delay of some 5 minutes in awaiting a tow truck. The impound lot was close and there were no nearby police units. The time spent waiting at the station and for the booking process itself was reasonable. All in, this was less than 20 minutes. There was some delay due to the qualified technician setting up the approved instrument and collecting grounds from the investigating officer. This was all necessary.
[36] I find that the police acted reasonably during the entirety of the investigation to ensure it moved efficiently towards the breath readings. All of the time spent was in furtherance of this investigation. The tests were taken reasonably promptly and thus, as soon as practicable. In this regard, the Criminal Code and the Charter were complied with.
Section 24(2) of the Charter and Balancing the Grant Factors
[37] In determining whether or not to exclude the breath samples pursuant to s. 24(2) of the Charter, I am required to assess the effect of admission of the evidence on societal confidence in our justice system. In conducting this analysis, I am required to balance the seriousness of the state-infringing conduct, the impact of the breaches on Charter-protected interests of the accused, and the societal interest in adjudication on the merits.
Seriousness of the Violations
[38] If there was a s.8 violation by the search of the vehicle, it was meaningless. The Crown did not lead any evidence from the search, and the fruits of the search did not form grounds for either the screening demand or the arrest for either charge. The vehicle had to be entered to be moved, and some of the evidence of open alcohol was in plain view. The search could not possibly contribute to the exclusion of the readings.
[39] The traffic stop was not arbitrary on any standard. The police reasonably suspected Mr. Elgas was driving while prohibited. There was also an independent authority to stop the applicant under the HTA.
[40] The failure to read again the right to counsel upon the arrest for "over 80", was not serious in the circumstances. The fulsome right was read and understood upon the arrest for driving while disqualified. The language of the right, had it been repeated after the "over 80" arrest as required, would have been identical in substance. Mere minutes had passed from the first recitation of the fulsome right and the arrest for the other offence and no evidence was extracted in the intervening period.
[41] At each stage, from roadside to station, notably after the breath demand was read, Mr. Elgas confirmed his understanding of the right to consult counsel and repeated that he did not want any legal advice.
[42] The staff sergeant at the station, while not reciting the precise language of the standard right to counsel, asked the applicant if he understood the right earlier provided and if he wished to consult duty counsel or private counsel. The applicant confirmed again that he understood he had the right to consult counsel and he still refused.
[43] Mr. Elgas demonstrated no assertion or diligence regarding the right to counsel at any time. The issue of waiving the right did not arise in the circumstances. No violation could be characterized here as serious.
Impact of any Breaches on Charter-Protected Interests
[44] Our Court of Appeal addressed the scope of this factor in R. v. Jennings, 2018 ONCA 260. For the reasons just referenced in discussing the reduced seriousness of any violations, there was no noteworthy impact on the Charter-protected interests of the applicant, irrespective of the correctness of my findings. The breath readings are reliable.
Societal Interest in Adjudication on the Merits
[45] There is an obvious societal interest in determining drinking and driving cases on their merits. The readings are highly reliable evidence and are critical to the Crown case. York Region is disproportionately inundated with this pernicious offending – perhaps unparalleled in the province.
Balancing the Grant Factors
[46] In weighing the Grant factors, the diminished seriousness of any violation and the fleeting impact on the applicant's Charter-protected interests support evidentiary admission. There is a serious societal interest in having these cases determined on their merits. An assessment of all three factors warrants the admission of the breath readings. There will be a finding of guilt.
Drive Disqualified: No Defence
[47] There is no discernible defence to the charge of driving while disqualified. Mr. Elgas was stopped by the police upon driving. He was prohibited from doing so. The s.259 prohibition was admitted into evidence on consent. It was not disputed that the defendant was driving while prohibited.
[48] Any of the submitted Charter violations are not reasonably connected to the evidence supporting the disqualification: R. v. Pino. The police had a reasonable suspicion that Mr. Elgas was driving the vehicle while prohibited and also had authority to stop him under the HTA.
[49] Any of the submitted Charter violations in this case could not constitute the "clearest of cases" warranting a stay of proceedings pursuant to s.24(1) of the Charter: R. v. Babos. There will be a finding of guilt for driving while disqualified.
[50] Mr. Elgas, please stand. I find you guilty of both charges. My thanks to counsel.
Released: July 10, 2019
Signed: "Justice A. A. Ghosh"