Court Information

Date: December 18, 2019

Ontario Court of Justice

R. v. Abdallah Matar

Halton POA Trial regarding 78.1(1) under the HTA

Decision regarding Defendant's Constitutional Motion

Section 8 Breach requesting a 24(2) Remedy

Heard: November 19, 2019; Motion decision filed December 6, 2019 and continued on December 18, 2019

Defence: Mr. Hogan

Prosecution: Ms. Boyd

Background

[1] This is a part one offence under the Highway Traffic Act (HTA) that alleges that on or about June 28, 2019, the Defendant Abdallah Matar was driving a Motor Vehicle on a Highway while holding a handheld communication device contrary to 78.1(1) of the HTA. The charging officer effected a traffic stop based on his observations and then requested the usual identification documentation from the driver/defendant. As the Defendant was flipping through his documentation, the officer who made the initial demand was standing at the driver's window at roadside. Though the officer made three successive demands for such documentation, the driver was unable and/or unwilling to produce the documents as requested. As the Defendant was searching through his cards and/or documents, the officer seized one of the two driver's licences and returned that licence directly to the Ministry of Transportation (MTO).

[2] Mr. Hogan, a paralegal and agent for the Defendant, raised an oral motion to exclude evidence based on the officer's illegal seizure. At trial, Mr. Hogan asked this court to find that a breach had occurred under the Evidence Act and that the remedy for such a breach would have been to dismiss the charge.

[3] Ms. Boyd, acting for the Prosecution asked for more time to research the Motion which was tabled without notice. I permitted an adjournment to allow both sides to have an opportunity to articulate both the Motion and reply to said motion. At the time I had given some guidance to both sides to suggest that perhaps the motion being requested pertained to the Charter and not the Evidence Act and that the only remedy should the court determine there was a Charter breach, would be to use a 24(2) remedy and issue a judicial stay of the charge before the court. I had requested written submissions on this point from both sides.

[4] The matter was scheduled for a return on today's date, December 18, 2019 to argue the motion before the court.

Issues to be Decided by the Court

[5] The court must determine on balance whether or not there has been a breach of the Defendant's rights under Section 8 of the Charter. In the event that there was no breach or where there was a breach that the court did not feel was clear enough to warrant a stay of the charges, the trial would simply continue. In the event that the court finds that there was a Charter breach, then the court must find the right balance between (a) the societal rights to hear all of the evidence and permit the trial to unfold despite the breach or (b) due to the officer's actions, rule in favour of the Defendant's motion and find that breach was egregious enough to warrant a judicial stay of the charge under section 24(2) of the Charter.

[6] The common law is quite clear in that the singular remedy of a judicial stay is to be awarded only in the clearest of cases. The analysis below will briefly review such common law.

Decision

[7] In general, when a police officer reaches through an open window and into a vehicle there are always perceived risks to both parties. It is a potential risk to officer safety and it could potentially cross the line where an individual's rights are subordinated excessively or unjustly. Though I personally do not condone the actions of the Charging Officer in reaching into the vehicle and taking documents out of the hands of the Defendant, it is not our role to criticize an officer or the actions of a Defendant. We do not have jurisdiction to alter Officer procedures and any complaints to that effect are not within the jurisdiction of this court.

[8] The focus of the court is to dispassionately examine the circumstances and the common law to deal with this motion and whether or not a Charter remedy should be granted.

[9] To assist, the common law we turn to is the case of R v. Pino, 2016 ONCA 389, where the Court of Appeal found that a Charter breach (my belief is that this is the correct legislation in which the Defendant relies upon), must be both temporal and contextual and neither tenuous or remote. That was also the position taken by the Supreme Court of Canada in R v. Mellenthin, [1992] 3 S.C.R. 615. In that latter case, the police located and searched a gym bag in a vehicle without any grounds to do so. Charter sections 8, 9 were at play with the remedy suggested and found under 24(2) of the Charter. In Mellenthin, the contents of the gym bag were excluded; however, the distinction with the case at bar was that the nexus between the evidence for the charge and the Charter breach was strong, temporal and contextual. Most of the common law, though each case differs on the actual factual evidence, stands for the proposition that there should be a direct connection between the Charter breach being alleged and the evidence being considered. The courts are obligated to balance the rights of an individual vs. the rights of the Crown and societal interest in hearing the merits of the case. Often the courts will examine whether or not such inclusion would bring the administration of justice into disrepute. As stated earlier, the singular remedy of a judicial stay exists only for or in the clearest of cases.

[10] In the case at bar, the Defendant was charged with cell phone use whilst driving. The alleged breach occurred after the officer formed reasonable and probable grounds through his initial observations. The alleged breach in this case did not occur at that stage and was directly attributable to the cellphone but due to missing documents that were not provided to the officer in a reasonable period of time. As such, the nexus between the breach and the observations of cell phone use were somewhat tenuous or remote. For instance, had the officer seized the phone itself the nexus between the charge and the alleged breach would be temporal and contextual and result in a stronger nexus. This would have potentially led the court to a different result however, that is not the case herein.

[11] Even if the court agreed that there was indeed a Section 8 Charter breach, it was not contextually egregious enough to merit a judicial stay of this charge, a charge which holds great public interest. In my opinion the facts of this case do not merit such a remedy. To repeat, the court believes that a 24(2) remedy would operate in the clearest or most egregious of breaches and that is not the case given all of the circumstances in this case. The officer testified that the Defendant was given three successive verbal requests to provide documentation and there was some evidence to suggest that the Defendant was unable or unwilling to provide such documents and in the officer's opinion became less cooperative as time progressed. Ultimately, the officer's document demands were not fulfilled. The court is unable to assess whether or not this was strategic on the Defendant's part, or, simply a case of nerves where the Defendant was under some stress and due to that stress, could not provide the documents to the officer upon request.

[12] The court has also noted that the Defendant was not alleging injury in this exchange nor was he under arrest. He was NOT charged with driving absent required driver's licence. Ultimately the Defendant was charged with offending 78.1(1) of the HTA and 3(1) of the Compulsory Automobile Insurance Act (CAIA) for failing to surrender a valid insurance card.

[13] In the court's opinion, there was no prejudice articulated by the Defendant in the officer seizing the licence and sending that second licence back to the MTO – the Defendant was ultimately obliged to return the duplicate licence to the MTO rather than at the hands of the officer in question.

[14] In conclusion, the court will not be granting the Defendant's motion for the above-mentioned reasons. To repeat, those are as follows:

(a) Due to the weak nexus between the cell phone evidence and the identification documents requested at roadside which happened after such observations and after the traffic stop. The nexus between the evidence for the charge itself (cell phone use) and the alleged breach was neither contextual nor temporal enough to warrant a judicial stay;

(b) Where a clear and serious breach has not occurred, the importance in such cases is to uphold the intent of the legislation which is to curb or eliminate distracted driving … in other words, the societal interest in hearing the merits of the case on the evidence overrides the alleged breach and the rights of the individual in this particular case and given the nature and extent of the breach alleged.

In short, this motion is denied.

Respectfully,

G. Manno

December 18, 2019