Ontario Court of Justice

Date: January 27, 2020

Central East Region

Between:

HER MAJESTY THE QUEEN

— AND —

DAVID SANNELLA

Before: Justice F. Javed

Heard on: February 8, July 5, December 16, 2019

Ruling on Charter Application and Reasons for Judgment released on: January 27, 2020

Counsel

D. Morgan — counsel for the Crown

A. Gerges — counsel for the Applicant

F. JAVED J.:

A. INTRODUCTION

[1] On February 3, 2018, David Sannella ("the Applicant") went to a bar with his friend, Phillip Morelli. The Applicant was driving Mr. Morelli home when he says Mr. Morelli suddenly grabbed and jerked the steering wheel causing his vehicle to lose control and slam into a brick retaining wall. The force of the accident resulted in significant damage to his motor vehicle. Thankfully, both the Applicant and Mr. Morelli were unscathed by the violent collision. Police Constables Mark Soto and Ryan Bandstra of the Durham Regional Police Service saw the spectacular accident unfold. PC Soto says he saw the Applicant trying to extricate his vehicle and thought he was attempting to flee the scene. The Applicant was forcibly removed from the driver's seat and arrested for a drinking and driving offence, which resulted in him suffering a concussion and a laceration on his eyebrow. It is the circumstances of this arrest, which was the subject of the trial proceedings.

[2] The Applicant was charged with the offence of having care or control of a motor vehicle while his blood alcohol concentration (BAC) exceeded 80mgs of alcohol in 100mls of blood and impaired driving contrary to s.253(1)(a) and (b) as those provisions read at the time in the Criminal Code.

[3] At trial, the Applicant argued that the police violated his rights under the Charter of Rights and Freedoms (Charter). Specifically, he argued the police used excessive force during his arrest, which lead to a breach of his s.7 Charter rights. As a remedy for the alleged violation, the Applicant seeks to exclude the evidence of his breath samples under s.24(2) of the Charter. Alternatively, he says this is a clear case which warrants a stay of proceedings under s.24(1) of the Charter.

[4] As for the merits of the prosecution, Mr. Gerges argues the Crown hasn't proven beyond a reasonable doubt that the Applicant's ability to drive a motor vehicle was slightly impaired by the consumption of alcohol.

[5] The Crown called the investigating officers, PC Bandstra and PC Soto as well as PC Nathan Keating as a qualified breath technician (QBT) who supervised the breath sampling at the police station. Several exhibits were tendered including the certificate of a qualified breath technician (COQBT) provisionally marked as Exhibit 1, the parade and breath room videos (Exhibits 2a, 2b), the Intoxilyzer test record (Exhibit 3) and a Google Map of 125 Athol St., Whitby, depicting the scene of the collision (Exhibit 4).

[6] The Applicant testified on the Charter voir dire only. The defence called Mr. Morelli on the Charter application as well.

B. ANALYSIS

[7] I will start with a brief review of the overarching legal principles that must guide my analysis.

(a) General Principles

[8] The Applicant bears the onus of proving that the police probably breached his s.7 Charter right and that he's entitled to a Charter remedy under s.24(1) and/or s.24(2): R. v. Singh 2007 SCC 48 at para. 8.

[9] Where there is evidence that the police used force during an arrest, the Crown bears the onus of proving the lawful use of force. In particular, the use of force is circumscribed by s.25(1) of the Criminal Code. The degree of force is constrained by the principles of proportionality, necessity and reasonableness: R. v. Nasogaluak, 2010 SCC 6, [2010] SCJ No. 6 at paras. 32-33; R. v. Davis, 2013 ABCA 15, 295 CCC (3d) 508 at paras. 43; and Chartier v. Greaves, [2001] O.J. No. 634 (S.C.J.)

[10] Many facts relating to the circumstances of the accident are not in dispute. However, the circumstances of the Applicant's removal from his vehicle and his arrest are very much in dispute. In a Charter voir dire, the reasonable doubt standard developed in R. v. W.D., [1991] 1 S.C.R. 742 does not apply where the Applicant bears the burden of proof on a balance of probabilities: R. v. Poole, 2015 BCCA 464, 330 CCC (3d) 281 at para. 51. Similarly the introduction of hearsay is permitted because a Charter voir dire is designed to establish "the state actor's mind and conduct, not the ultimate reliability of the evidence in determining the guilt of the accused": R. v. Paterson, 2017 SCC 15 at para. 20. I have kept these principles in mind while wading through the evidence and distinguishing between the Charter issues and the Crown's ultimate burden of proof.

(b) Excessive Use of Force by Police

[11] Section 7 of the Charter affords citizens with a right to be secure against arbitrary force, especially physical violence by state actors, which includes police officers.

[12] In Nasogaluak, supra, the Supreme Court summarized the legal principles involving the issue of excessive use of force by police at paras. 34-35:

[34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

[35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Justice Hill, a highly experienced jurist, also thoroughly considered this issue in a trilogy of cases: R. v. Williams, [2018] O.J. No. 3217 (Ont. Sup. Ct.) at para. 164, R. v. Rigo, 2017 ONSC 3694, at paras. 72, 74-75, 81-87 and R. v. DaCosta, 2015 ONSC 1586, at paras. 92 to 105. Mr. Gerges provided me with the case of R. v. Walcott, [2008] O.J. No. 1050 (S.C.J.) which also considers this issue, albeit in the use of a police taser.

(c) The Test for Stay of Proceedings

[13] If the Applicant is successful in proving a s.7 Charter violation, he may be entitled to a s.24(1) Charter remedy. This section provides:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a Court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.

[14] In R. v. Babos, 2014 SCC 16, [2014] SCJ No. 16, the Supreme Court set out a three-part test to determine if proceedings should be stayed due to a Charter violation:

(1) There must be prejudice to the accused right to a fair trial or to the integrity of the justice system that 'will be manifested' perpetuated or aggravated through the conduct of the trial or its outcome'

(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.

[15] The Applicant doesn't argue that the alleged Charter violation(s) would render his trial unfair but submits that the conduct of the police was so egregious that to allow the prosecution to continue would undermine the confidence in the administration of justice (the residual category). See for example, R. v. Tran, 2010 ONCA 471.

[16] In the case of R. v. Abdillahi, [2019] O.J. No. 3061 (Ont. Sup. Ct.), Justice Schreck explained the test again, stating: (at para. 29)

29 A stay of proceedings is "the most drastic remedy a criminal court can order": Babos, at para. 30. It will be only be used in the "clearest of cases", that is, "exceptional" and "relatively very rare" cases where the state misconduct is "so egregious that the mere fact of going forward in light of it will be offensive": Babos, at para. 31; Tobiass, at para. 91. Stays of proceedings have been ordered in cases involving the excessive use of force by the police: R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at paras. 90-91, 103-107.

[17] I will now turn to the evidence and my findings of fact.

(d) The Background Facts

[18] On February 3, 2018, PC Bandstra was on general patrol with PC Soto. The two police officers were traveling together in a marked police SUV in the town of Whitby, in the region of Durham. PC Soto was the driver and PC Bandstra was the passenger. PC Bandstra had been a police officer for about one year, while PC Soto had been a police officer since 2008.

[19] At 2:28 am, they were traveling behind a red Jeep operated by the Applicant. Both saw the Applicant's motor vehicle inexplicably slam into a brick retaining wall. The circumstances were most unusual as they both saw it make an abrupt move to the right, then veer to the left, move across the opposite lane, narrowly missing a pole and mount a two foot barrier and slam into the wall. The vehicle was still moving at a "good speed" when the accident occurred. There is no dispute that the Applicant was operating the red Jeep and Mr. Morelli jerked his steering wheel causing him to lose control. PC Soto said it was a spectacular accident and he immediately became concerned for the occupants. Ultimately, the Applicant was extracted out of his vehicle and arrested for the criminal offence of impaired care and control. There is some factual controversy about how this unfolded. Before I examine this evidence, I will add some additional facts, which are not disputed.

[20] Mr. Gerges did not take issue with the breath testing procedure. Section 320.31(1) of the Criminal Code provides an evidentiary short cut to the Crown provided that the results of the breath tests are accurate if the criteria enumerated in the section are met. In this case, the Crown also called PC Keating, who: (i) was a designated QBT at the time he took the breath samples, (ii) was using an approved instrument (Intoxilyzer 8000C), (iii) determined the Intoxilyzer 8000C passed the calibration, diagnostic and self-diagnostic tests, (iv) determined that the instrument was working properly based on a system calibration check and (v) received two proper and suitable samples truncated at 190 and 180 mgs of respectively, of alcohol, in 100mls of blood. Mr. Gerges did not take issue with the above facts, which I find were proven with the assistance of Exhibit 3 (the Intoxilzyer 8000C test record). The breath samples are only admissible if the Charter application is dismissed.

[22] In addition to the breath testing, PC Keating testified he saw a small cut on the Applicant's left eyebrow. Further, I find that the Applicant never told PC Keating he needed medical attention during his interaction with him, which was a substantial amount of time. I have carefully reviewed the breath room video. The Applicant was cooperative, polite and talkative. I will have more to say about this later in these reasons.

(e) The Positions of the Parties on the Use of Force Issue

[23] Mr. Gerges says both PC Soto and PC Bandstra used excessive force in extracting the Applicant out of his car and arresting him. He says the level of force was unnecessary and exceeded the scope under s.25(1) or s.25(4) of the Criminal Code. In particular, he says the force involved four parts: (i) the initial extraction, (ii) the alleged hitting of the Applicant's head against his car window, (iii) the alleged tripping to the ground and (iv) the alleged kneeing action on his back after he was restrained. He argues any of the above standing alone or in combination is sufficient to find a s.7 Charter violation. In addition, he says the police did not tend to the Applicant's medical injuries, which was a separate Charter violation. He says this is a clear case to stay the proceedings or exclude the evidence of the breath samples as they were "obtained in a manner" which resulted in a Charter breach.

[24] Mr. Morgan on behalf of the Crown, acknowledges the Applicant suffered a concussion but says it's unclear how or when. Moreover and despite this unfortunate fact, there was no Charter violation because the police were responding to a dynamic situation and acted reasonably by extracting the Applicant out of his car. There was no deliberate use of force above and beyond a reasonable amount needed to arrest an intoxicated driver who the police reasonably thought was going to make an unsafe decision and get back on the road and continue to drive drunk. However, if the court finds the police action went too far, this is not a case to either stay the proceedings or exclude the breath readings.

[25] For reasons that I will explain, I agree with the Crown's position. I find the use of force in this case was reasonable having regard to the context of the case. An overall examination of the entire chain of events leads to the conclusion that the police did not use excessive force. They did not intentionally or recklessly assault the Applicant at any point. I have concluded that the police responded to a dynamic emergency situation and quickly arrested the Applicant. I agree with Mr. Gerges it [the arrest] could have been less aggressive but the Crown has proven it was proportional, reasonable and necessary. Moreover, I find the police did offer medical assistance and followed through with this. If I am wrong that the police conduct crossed the line, the record on this application is not close in supporting a stay of proceedings or an exclusion of evidence.

[26] I now turn to the evidence.

Evidence of the Applicant

[27] The Applicant is 24 years old. He is employed as a sales representative for Like Kind Quality, which sells recycled and aftermarket auto parts. The Applicant said he was out with his friend Phillip Morelli at a bar called Tap and Tankard ("the bar") in Whitby. He was driving his motor vehicle and arrived at the bar at 11-11:30 pm. After waiting for about 15 minutes to enter, he stayed at the bar until about 1:30 – 1:45 am. The Applicant said he didn't consume any alcohol prior to going to the bar but he had 6-7 mixed drinks with a single shot of liquor. This is a substantial amount of alcohol to consume in about two hours.

[28] The Applicant said he was driving home as Mr. Morelli was going to sleep over. He said his home is about 2km away from the bar. He took Athol St. towards Dundas and went north on Brock Road. During the drive home, Mr. Morelli was seated in the passenger seat and grabbed the steering wheel to move it to the left as he was getting too close to a curb. Mr. Morelli confirmed this. His vehicle began to move towards the left and he tried to correct the turn but couldn't due to black ice as the tires began to slip. The police evidence was that the roads were clear and dry with no traffic. I'm prepared to accept there might have been black ice given the month, but the reason for the loss of control was the attempted over-correction. The Applicant ultimately struck a brick retaining which was 3-4 feet high. The Applicant said he was traveling the speed limit at 50-60km/h prior to Mr. Morelli grabbing the wheel and slowed down to about 15km/h before he hit the wall.

[29] After making contact with the brick wall, he looked around in the vehicle and asked Mr. Morelli if he was okay. Both parties were okay and didn't appear to be injured. The air bags were not deployed and the windshield was not damaged. In my view, this does not diminish the severity of the impact, which even at the Applicant's evidence of contact at 15km/h, is significant. The Applicant said he tried to extricate the vehicle by moving the gearbox but it was making "a weird noise as if the gears weren't catching". He was pressing the brake pedal. He did not attempt to push the gas pedal.

[30] In cross-examination, he admitted that in doing so, he may have put the vehicle in reverse and activated the reverse lights and his vehicle might have sounded like he was trying to "rev the engine". Given the extent of the damage, the only direction the vehicle could move, if at all, was in reverse. Exhibit 4 is a Google Map, which shows Athol St. with two lanes. If the vehicle were to reverse, he would end up in oncoming traffic before entering the correct lane of travel.

[31] The Applicant said he took off his seatbelt as he wanted to survey the damage to his vehicle. There is a factual dispute because PC Soto said he had to take his seatbelt off. The Applicant said his door was swung open by PC Soto. The Applicant did not argue that this was a s.8 Charter violation. See for example, R. v. Lippett, [2014] OJ No. 5185 (CJ).

[32] The Applicant says PC Soto grabbed him by the front zipper of his jacket and his left arm and dragged him out of the vehicle. He was never asked to step outside on his own accord. When outside, PC Bandstra swung him into the rear driver's side door and his head was slammed against the window of the rear driver's side door. He never resisted the arrest nor was told he was resisting. PC Soto held him up and tripped him with his left leg, resulting in him falling on the road and hitting his head. This resulted in an injury to his eye, which began to bleed. While on the ground, he was restrained and handcuffed but PC Bandstra placed his knee on his back and applied pressure. PC Soto uttered "you really fucked up". The Applicant says he never saw the police behind him and was probably trying to get his car out for "30-40 seconds".

Evidence of Philip Morelli

[33] Mr. Morelli is 25 years old. He is employed as a carpenter. Mr. Morelli said the Applicant is his best friend. He has known him for 10 years. Mr. Morelli confirmed much of the Applicant's evidence. He said he drank maybe 4-5 mixed alcoholic drinks at the bar. He didn't know how much alcohol the Applicant drank. Mr. Morelli said he has a recollection of the evening as he felt "fine".

[34] Mr. Morelli said they left the bar around 1:30 am. The plan was to have the Applicant drop him off at his sister's condo in south Whitby. This conflicts with the Applicant's recollection but it's an immaterial inconsistency. Mr. Morelli said the Applicant was veering off towards the right curb and he was about to hit it. As a result, he grabbed the steering wheel with his left hand and began to turn the wheel slightly to the left to avoid hitting the curb. The roads weren't too good and he assumed they hit black ice as the tires were sliding. The vehicle hit the retaining wheel. The air bags weren't deployed. He was not injured, nor was the Applicant.

[35] Mr. Morelli testified he remained in the passenger seat. Suddenly, the Applicant was "jerked" aggressively out of the driver's seat. He heard a loud bang, and when he looked to his left, he saw the Applicant's head against the side window. He did not see how this happened. He then saw a "tripping kind of motion" and the Applicant fell down. He did not see who did this. After he exited the vehicle, he saw the Applicant being escorted to the police cruiser by two officers.

Evidence of PC Soto

[36] PC Soto testified that at 2:28 am, he and PC Bandstra were behind a red Jeep travelling NB on Athol St. north of Colborne St. There is no dispute this vehicle was being operated by the Applicant. He said the Jeep veered to the right, which accords with Mr. Morelli grabbing the steering wheel, then quickly jerked back to the left. The Jeep quickly accelerated, mounted a curb and smashed into a two-foot concrete barrier.

[37] PC Soto said the traffic was non-existent given the time of day. He quickly parked his SUV 10-20 feet behind the Jeep. He said it was a spectacular collision with the impact causing the rear of the vehicle to come off the ground. Upon exiting the cruiser, he went towards the driver side door while PC Bandstra went to the passenger side. In doing so, he saw the white reverse lights of the Jeep activate and heard the engine revving.

[38] PC Soto testified he believed the driver was trying to flee the scene of the collision as the only direction the vehicle could move was backwards. It was a dynamic and chaotic scene. He immediately became concerned about the safety of everybody and called out to PC Bandstra to join him at the driver's side door. He said PC Bandstra walked around the back of the car and he became concerned the Applicant might inadvertently run him over.

[39] PC Soto said both he and PC Bandstra positioned themselves at the driver's side door. Curiously, he never testified he opened the door, leaving the evidence of the Applicant on this point unchallenged. When the door was open, he was clear he issued two demands, believing he said: "turn the car off" and "get your seatbelt off". In chief, the Applicant was never asked if PC Soto gave him these two demands. Nor was this asked of Mr. Morelli. I accept the evidence of PC Soto that he made these commands. Moreover, PC Soto added the Applicant was unresponsive to either command so he reached in and unbuckled him. He said it was "imperative" that he had to be removed because of his concern he may flee and to avoid the vehicle moving. He added he didn't pull out his firearm or say anything threatening. This was confirmed by PC Bandstra. The Applicant never alleged threatening commands or conduct.

[40] PC Soto said he smelled alcohol in the vehicle. He placed his arms under the Applicant's armpits and removed him from the driver's seat and transferred him to PC Bandstra who was standing to his left, to be arrested. He said both officers were wearing full uniforms with visible POLICE markings across the chest. There's no evidence that he told the Applicant to exit on his own accord. Instead, he wanted to get him out given the sheer impact of the collision. Ultimately, he believed the passenger turned off the vehicle and took the keys out. He said the Applicant immediately collapsed to the ground and appeared to be intoxicated given the odour of alcohol that was now coming from him.

[41] In cross-examination, PC Soto said after he pulled him out, he recalled the Applicant in handcuffs but didn't know when PC Bandstra handcuffed him or how. He denied "throwing" the Applicant against the back window and didn't see PC Bandstra doing this either. He also disagreed that he "grabbed him and threw him to the floor" and that he "remained on top of him while on the ground".

[42] He did not see any injuries on the Applicant and while en route, maintained that he asked the Applicant if he wanted to attend the hospital and he said no. He said he asked him "many times" if he needed medical attention, with a "No" answer. He explained he was just involved in a serious traffic collision and while he didn't see any obvious head trauma, it was his practice to ask the question to make sure the arrested party was okay.

Evidence of PC Bandstra

[43] PC Bandstra testified he was shocked when he saw the force of the collision. He immediately exited his cruiser with PC Soto behind him. He too heard revving of the engine but didn't see any white lights. The police SUV wasn't blocking the vehicle's path should it try to reverse. He became concerned the occupants might try to flee when PC Soto notified him of this. He went to the passenger side and saw PC Soto extract the Applicant out of the car. He told the passenger to remain in his seat. In cross-examination, he said the police didn't ask him to exit on his own accord given the sheer intensity of the accident.

[44] Upon arriving, PC Soto handed him the Applicant who fell to the ground. He immediately smelled alcohol coming from his breath. PC Bandstra said he tried to lift him up by his arms so he could stand and be handcuffed but he appeared "kind of floppy" and had awkward movements. He was able to forcibly lift him up and placed the Applicant's chest against the police vehicle. He said he couldn't recall if he hit his head against the window but he never intended for this. He said it wasn't a smooth movement but it wasn't aggressive either. The Applicant was arrested for impaired care or control based on the smell of alcohol on his breath, his bloodshot eyes, the circumstances of the collision and unsteadiness on his feet. Mr. Gerges does not take issue with the police forming reasonable grounds for the arrest, but argues this doesn't amount to proof beyond a reasonable doubt that the Applicant was impaired by the consumption of alcohol.

[45] In cross-examination, PC Bandstra said he might have used his forearm on his back to push him against the vehicle as it would be necessary to turn him around to handcuff him but he denied using excessive force or intentionally striking his head against the vehicle. Further, he wasn't sure if the Applicant was trying to flee or not and he wasn't sure if he used his knee or to secure him when he was on the ground but he may have in order to "control him".

[46] PC Bandstra was challenged on the Applicant's ability to flee given his state. He confirmed he didn't see any movements that suggested to him apart from learning that he was trying to reverse the vehicle that he could flee but he believed he wanted to and said he had to make sure it wasn't an option. He added: "I saw the totality of [his] movements, the collision, the sound of the engine running, the removal of the driver, his unsteadiness". All of this was a sign that he needed to use force to control him, and he didn't want to give him the option of leaving".

[47] He also added that he was concerned for his safety as well because the situation was dynamic, fast and abrupt. He admitted the adrenaline was flowing.

[48] In the end, he admitted the Applicant could have hit his head against the car but he never did so intentionally. He never "smashed" his head against the vehicle or the ground. And, both police officers said they didn't use excessive force or intentional force above and beyond the arrest.

[49] Further, PC Bandstra testified he overheard PC Soto ask the Applicant in the cruiser if the Applicant needed to go to a hospital, which of course conflicts with the evidence of the Applicant. This was not offered for its truth. It is admissible as narrative. The Applicant never asked him directly for medical assistance. At the police station, he didn't see any bumps or blood but said it was possible he was bruised. He heard the Applicant tell the booking Sergeant of an injury to his left eye when police pulled him out of the car.

Escort and Transport

[50] The Applicant testified he was picked up by both officers from the ground and PC Soto escorted him to the back of the cruiser. He remained in the cruiser for what felt like 10-15 minutes. He was dazed and dizzy. He was unable to see what the police were doing if anything. At some point, the officers got into the vehicle and about 5-10 minutes later, he was read rights to counsel (RTC). When this potential issue was raised by the court, Mr. Gerges confirmed he wasn't advancing a s.10(b) Charter violation. During transport to the police station, he was "dazed and out of it".

[51] Ultimately, the Applicant said he began to hear a ringing noise. While no medical evidence was called, the parties agree the Applicant was later diagnosed with a concussion after he was released from the police station.

[52] PC Soto and PC Bandstra testified the Applicant was arrested within a couple of minutes, specifically at 2:31 am. PC Bandstra read him RTC and a caution from the back of his notebook. The Applicant indicated he understood both.

[53] At 2:33 am, PC Bandstra read the Applicant a breath demand into an approved instrument from his notebook. The Applicant indicated he understood.

[54] PC Bandstra said he identified the Applicant and continued to make observations including the odor of alcohol, which he said was filling the cruiser.

[55] At 2:37 am, the police began to transport the Applicant to 17 Division in Oshawa, the location of the nearest QBT, arriving at 2:49 am. They used the most direct route. While en route, the Applicant was "fairly cooperative", however when the police told him that his vehicle was going to be impounded, he became aggressive and belligerent. According to PC Soto, the Applicant was displaying "extremely intoxicated behavior". For example, he was slurring his words and he couldn't comprehend the nature of the damage to his vehicle.

Booking Procedure

[56] The Applicant testified he asked for medical attention at the police station. In cross-examination, he was showed the booking video and admitted that while he identified an eye injury during the arrest, he didn't ask for medical attention. The Crown argues this inconsistency is important because it proves the Applicant is not credible about his version of events and suggests he was not injured to the degree he alleges. The Applicant also admitted in cross-examination he did not ask for medical attention to the breath technician. He adopted the following comment as true, he made to the booking Sergeant: "there was an injury to his left eye when the police pulled [me] out of the car, nothing else". However, the Applicant testified he spoke to another unknown officer at some point and asked for medical attention and was given a tissue for his bloody eye. No evidence was called about this other unknown officer. He was ultimately taken to the hospital by PC Soto who he says was "making fun" of him by stating he "fucked up" and "take care of your eye". This was never put to PC Soto. In re-examination he explained he didn't ask for medical attention because he was "out of it and very cloudy". I don't accept PC Soto was "making fun" of the situation. He presented as a careful and professional witness in the courtroom.

[57] At 3:05 am, the Applicant was transferred to duty counsel in a private room, finishing the call at 3:13 am.

[58] At 3:14 am, the Applicant was transferred to PC Keating, the QBT. Prior to this, PC Bandstra provided him with his grounds for arrest, which included the above details.

[59] At 3:28 am, the Applicant provided his first sample registering a truncated reading of 190mgs/100mls of blood.

[60] At 3:49 am, the Applicant provided his second sample registering a truncated reading of 180mgs/100mls of blood.

[61] At 3:49 am, the Applicant was returned to PC Bandstra along with a COQBT. PC Bandstra served the Applicant with the COQBT, which was provisionally marked as Exhibit 1.

[62] At 4:15 am, the Applicant was released on a PTA after being served with the "rest of the documents".

[63] Finally, PC Bandstra said the Applicant then requested to be taken to a hospital which had been offered to him earlier by PC Soto which he had declined. As a result, he drove him to the hospital and continued to make observations of impairment. By this point, the Applicant was more confident on his feet but had turned argumentative.

Findings & Analysis

[64] I reject the evidence of the Applicant that the police applied excessive force during his arrest. I do not find that the police set out to use excessive force or intentionally or recklessly used unnecessary force to effect his extraction from the car and during his arrest. In my view, this was a dynamic emergency situation and given the necessary context, it would be an error in principle to judge the conduct of the officers, after the fact, with exactitude. In saying this, it is most unfortunate the Applicant was injured during the interaction but this was not unlawful conduct that proves a Charter violation. I did not accept the Applicant's evidence because he overemphasized the extent of his injury and was inconsistent on material points. As a result, the Applicant has not met his onus to prove a breach of s.7 of the Charter. If I am wrong about this conclusion and the police conduct did cross the line, the evidence on the application is not close to being a clear case where the proceedings should be stayed. Nor is it appropriate for a s.24(2) exclusion. Out of an abundance of caution, I will address these issues as well.

[65] I reach the above conclusions with the following findings in mind:

• The Applicant lost control while driving a motor vehicle and slammed into a two foot brick retaining wall. The police saw him lose control. To any police officer, this would be a cause for immediate concern because of the inexplicable collision. It goes beyond simply poor driving. This informs the state of mind of both police officers suggesting good reason to believe the occupants might be injured;

• I find the Applicant was trying to reverse the vehicle to extract it. This includes revving the engine. I find PC Soto saw this and would have good reason to believe that he was attempting to flee the scene. PC Bandstra heard the revving and as the junior officer, had reason to follow PC Soto's lead. Both had reason to be concerned for the safety of the occupants, the community (if the vehicle was able to reverse) and themselves. This too informs the subjective state of mind of PC Soto and PC Bandstra. It provides important context to the overall circumstances of the events that followed;

• I find PC Soto opened the door and immediately extracted the Applicant out of his car by placing his hands on him and pulling him out. Importantly, I find PC Soto directed him to turn off his car and unbuckle the seatbelt, and he didn't comply with either. This suggests the Applicant was not complying with police commands. A reasonable inference that arises from this is that the person doesn't want to comply with the demand. It was a proportional response to therefore, follow through and extract the person out of the car. To argue that PC Soto should have waited and engaged in a conversation with the Applicant after a dynamic accident is not reasonable;

• I find there's no way of knowing if the Applicant suffered his laceration to the eye based on the extraction but it's certainly possible. I find the Applicant fell to the ground by some means, likely by a combination of losing his balance by the force of being pulled out of the car. I do not accept that he was tossed or thrown out of the car or to use the words or Mr. Gerges, "manhandled";

• I find PC Bandstra lifted the Applicant up from the ground and turned him around to have his chest face the vehicle. I find he did this to handcuff him to the rear, which was lawful and reasonable because he had grounds to do so. Mr. Gerges does not take issue with the authority to arrest. I find PC Bandstra used some force to place the Applicant against the back of the car to control him so he could be handcuffed. I do not accept he deliberately lifted him up to slam his head against the window;

• I find that the Applicant fell to the ground, again, (after he was handcuffed) but not because PC Soto or PC Bandstra deliberately tripped him to the floor. The Applicant would have been handcuffed, disoriented from the force of the collision, disoriented from being forcibly removed from his car and being placed against his car and also unsteady from his consumption of alcohol. Indeed, the Applicant admitted on the voir dire that he was impaired by alcohol consumption which can only be used on the voir dire issues and supports his state of mind at the time;

• Based on the evidence as a whole, I find that PC Bandstra may have placed his knee on the Applicant to get him under control after he fell down but did not do so as a means to intentionally assault him. Nor does this conduct exceed the permitted scope of force permitted by s.25 of the Code;

• However, I do not find that PC Soto placed his knee on the Applicant at any point;

• I accept the evidence of PC Soto that he offered the Applicant medical assistance in his cruiser, which the Applicant turned down;

• The Applicant advised the booking Sergeant of an injury to his left eye when he was dragged out of the car. He did not complain of being tripped to the ground or being kneed. He did not ask him for medical attention;

• The Applicant never asked any other police officer for medical attention until the end of his breath sampling;

• The Applicant did not ask for medication while being booked. He presented with no visible injuries on either the booking or breath room video. He did not appear visibly concussed which would have been an immediate red flag for the police. He was able to answer questions;

• The Applicant was cooperative and polite with the police suggesting he did not have any obvious cognitive difficulties from a head injury. He was able to walk without assistance, in the detachment;

• I reject the Applicant's evidence that he asked for medical attention from another police officer while at the station. If such were the case, surely the police would have tended to his request before he was released;

• The Applicant suffered from a concussion but I cannot arrive at any fair conclusion as to how he suffered from this concussion. Was it from the circumstances of the spectacular collision, the extraction, losing his balance and falling down or a combination of all the above. I simply don't know. Nor do I have any evidence of its impact on the Applicant after the fact.

Opening the Door

[66] Mr. Gerges says it was unnecessary to pull the Applicant out of his car but did not advance this as a separate breach of s.8 of the Charter. The lawfulness of this action depends first on whether there were lawful grounds for an arrest, which also requires an examination of whether it was proper to open the car door. If the grounds did not exist for an arrest, then any use of force might be unreasonable.

[67] I find given the spectacular collision and the efforts of the Applicant to extricate the vehicle, it was perfectly reasonable to assume the Applicant would flee the scene. Accordingly, there would be grounds under the Highway Traffic Act or the Criminal Code to arrest the Applicant for the offence of failing to remain at the scene of a collision. The circumstances morphed into a drinking and driving investigation, but this happened organically. The officers had no idea that the Applicant might be impaired. All they saw was a spectacular collision. Given this context, to any objective observer, the Applicant would be a danger to himself, Mr. Morelli and the public if he was able to move the vehicle. The police acted quickly in a dynamic situation by pulling him out to avoid this from happening. Accordingly, the act of opening the door fell within the general scope of police powers conferred upon PC Soto by statute and common law. It was minimally intrusive but a necessary means to facilitate that the Applicant would not flee and was a justifiable use of PC Soto's power: R. v. Mann, 2004 SCC 52.

Grounds for Arrest

[68] Moreover, I am also satisfied that PC Soto had reasonable grounds to arrest the Applicant for impaired care or control based on the totality of the circumstances including the collision which involved jerking movements of the vehicle, his attempt to extricate the vehicle, the smell of alcohol in the car and his unsteadiness after pulling him out. The law requires reasonable grounds that the Applicant was in care or control of the vehicle while his ability to operate the vehicle was slightly impaired by alcohol: R. v. Bush, 2010 ONCA 554, at para. 48; R. v. Stellato (1993), 12 O.R. (3d) 90, (C.A.) aff'd , [1994] 2 S.C.R. 478. Viewed cumulatively, the grounds amply and objectively supported PC Soto's belief in this regard. The arrest was lawful.

The Extraction

[69] Mr. Gerges argued it was unreasonable to pull the Applicant out of his vehicle because it was clear, given the extent of the damage, that the vehicle was inoperable. While I do not know if the vehicle could in fact be reversed because of its state, what is important is what was in the mind of PC Soto at the time he decided to pull him out. Hindsight is always 20/20. I am not prepared to fault PC Soto for not slowing down during a dynamic situation. His belief that the Applicant would drive away was, in context, reasonable. Therefore pulling him out of the car, without an offer to exit on his own, was also reasonable. It was more reasonable after the Applicant didn't follow his simple commands.

Excessive Force Allegations

[70] Mr. Gerges says the Applicant was intentionally and unnecessarily "smashed" against the rear window. I find that PC Bandstra did use some force during his efforts to control the Applicant and handcuff him, which required him to lift him up and turn him around. I am prepared to find that he probably did use his forearm in trying to gain control but the word "smashing" is simply too strong to explain what happened. I believe him when he said the Applicant was unsteady on his feet. This could have been from the combination of the accident and being pulled out. It is reasonable to believe that the Applicant would have been in shock and therefore unsteady on his own accord. On his own evidence, he consumed a significant amount of alcohol (6-7 mixed drinks) and was losing control of his vehicle when Mr. Morelli had to correct him. While that could have happened from the black ice, it also could be from alcohol impairment. This tends to point to a reasonable inference that he needed some assistance in getting the vehicle under control. I tend to agree with the comments of my colleague Justice Jaffe who considered a similar complaint in the case of R. v. Melo, [2018] OJ No. 2377 (CJ) where an officer was allegedly aggressive with a detainee during an arrest. She wrote:

102 It is possible another officer might have handled the situation differently, perhaps negotiating with Ms. Melo for a longer period of time, or explaining the law of care and control thoroughly. However, the actions of police officers should not be measured against a standard of perfection, nor should the amount of force used be measured with exactitude: Nasagaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 35.

[71] In my view, the above comments apply to this case. PC Soto and PC Bandstra were confronted with an alcohol-impaired person who looked as if he was going to flee the scene, which shows a profound error in judgment. While the Applicant never said he would drive away if he could, the more prudent thing to do would have been to turn off the engine and call the police. He didn't do that. Instead, he tried to move the vehicle, which might be understandable as a gut reaction, but it was the wrong and unsafe decision. If the police misjudged the Applicant's intentions, the objective facts they had to work with involved the Applicant's actions of trying to reverse the vehicle. It was a reasonable belief at the time even if other options were better – with the luxury of time and reflection. It cannot be forgotten that the Applicant did not comply with police commands to turn off the vehicle and unbuckle which adds a layer of complexion to this issue. If the Applicant was completely compliant and was still pulled out with force, that might be cause for concern. It may be that he was in shock but I can't fault PC Soto for not knowing this. It is reasonable to think the Applicant didn't want to listen to the police so other steps had to be taken.

[72] As for the complaints involving having his head smashed and getting kneed, I reject this evidence. I also disagree with the argument that the Applicant was "manhandled". As stated above, it's clear, for whatever reason, the Applicant was disoriented and lost his balance by falling down twice. There would be no reason to ground him as he was under control. I find the Applicant fell down on his own accord likely because he was unsteady and had just experienced a spectacular collision. I reject the Applicant's evidence because on his version, I would expect much more serious injuries from being tripped to the floor and being kneed aggressively in the back. The Applicant's disposition on the booking and breath room video completely belie any suggestion he was injured to this degree. As stated above, he did not accept the police officer for medical assistance at the scene and only at the end asked to go to a hospital. There's no doubt he suffered a concussion but I can't say that the police probably caused this. Moreover, the mere fact of an injury does not itself prove an excessive use of force: Melo, supra at para. 101, citing Lopez-Varga, at para. 26. This is not a case like Walcott, supra where the police used a taser on a detained and controlled suspect, which the court found was an "egregious" act of misconduct or like the case of Tran, supra, where the accused was unnecessarily beaten when he tried to exercise his right to silence. This conduct was neither deliberate nor egregious. In the context of this case, it was reasonable and therefore lawful. In Williams, supra, the police did a high risk take down and tasered the accused. Hill J. found no breach of s.7 or s.12. In Dacosta, supra, the applicant was kicked to the ground during a lawful arrest. That wasn't sufficient to find a Charter breach. Justice Hill exhaustively reviewed the law and summed it up with the following:

105 Accepting that in making a forcible arrest the police do not have an unbridled or unrestrained power to use force, and certainly no authority whatsoever to use force as a form of pre-custody, extrajudicial punishment, judicial review of "the sometimes hazy border between excessive and acceptable force" (Aipperspach v. McInerney, USCA 8th Cir. (Sept. 5, 2014; No. 13-2942)), looks to the reasonable officer in similar circumstances to those faced by the subject officer. Accordingly, this modified objective test (Nasogaluak, at para. 34) takes account of not only the external conditions including urgency and the imminence of the threat, the risk posed by the threat, the time to react, the unknowns and limited information available (Hill, at para. 73), but also such factors as the knowledge, training and experience of the officer: MacKenzie, at paras. 61-4; see also Plumhoff v. Rickard, 572 U.S. ___ (2014) ("Respondent's excessive-force argument requires analyzing the totality of the circumstances from the perspective" of "a reasonable officer on the scene ...").

[73] Applying the modified objective test to the police action in this case, the force used was proportional and reasonable. It was lawful. Accordingly, the Applicant's s.7 Charter application alleging excessive use of force is dismissed.

[74] Similarly, so too is the complaint that the police didn't tend to his medical issues which I find they did.

[75] If, however, I am wrong in my conclusion that the use of force was excessive, I find that the record does not establish a clear case where a stay of proceedings should be entered. Nor does it support a s.24(2) exclusion of evidence remedy. I will address both issues.

Is this a clear case for a stay of proceedings?

[76] In my view, if the conduct of the police officers missed the mark, it did so by very little. A critical fact that cannot be overlooked is the Applicant's actions of trying to remove the vehicle and his failure to respond to police commands. If that did not happen, the analysis might be different because it changes the dynamic nature of the incident. This would not be too dissimilar to the case of Abdillahi, supra where Justice Schreck held that the officer "may have exercised bad judgment in the course of a 'stressful and fast-moving situation'. To be perfectly clear, I find that PC Soto and PC Bandstra did not exercise bad judgment but it's clear the situation was stressful and fast moving. The police conduct was motivated by good faith to get the Applicant out of the car and under control for everyone's safety. I fully accept that nobody set out to injure the Applicant.

[77] While it's most unfortunate the Applicant suffered a concussion, there's no evidence that the injury had a lasting impact on him. In Nasogaluak, supra, at para. 17, the police conduct was far more egregious but that too wasn't enough to meet the high hurdle of being a clear case where a stay would be appropriate. Given my findings in this case, the record does not meet the test to stay the proceedings.

Should the evidence be excluded under s.24(2)?

[78] Finally, Mr. Gerges advanced an alternative s.24(2) remedy. He says the breath samples and observations of impairment collected by aggressively pulling him out of the vehicle and then using excessive force "formed an integral part of a single investigatory transaction" creating a sufficiently strong and temporal connection between the Charter breach and the securing of evidence to invoke s.24(2): R. v. Pino, 2016 ONCA 389; R. v. Goldhart (1996), 107 CCC (3d) 481 (SCC) at p. 495.

[79] For purposes of this discussion, I am prepared to assume after applying a Pino analysis, there is a temporal and causal connection between the alleged Charter breach and the collection of evidence, although I have reservations about this conclusion. In my view, it is too remote because the police had ample grounds to arrest him and make an approved instrument demand. It's not as if the Applicant refused because he couldn't provide a sample – because of injuries. But, I will give the defence argument the benefit of the doubt because I find that the Applicant would not have met his onus under s.24(2). Arguably, this analysis is somewhat artificial because of my findings of no excessive force. If there was excessive force, that changes the analysis completely. However, I will do so on the basis that the police conduct crossed the line without being excessive.

The Grant Factors

[80] The s.24(2) analysis is governed by the three factors set out by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1. In the first prong of the Grant analysis, police conduct must be assessed along a spectrum of conduct from minor or inadvertent violations to wilful or reckless disregard of an accused's Charter rights: R. v. Marakah, 2017 SCC 59, [2017] S.C.J. No. 59, at para. 61; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 74. Flagrant and deliberate errors are at one spectrum while technical and fleeting errors are at another.

[81] In Paterson, supra, Brown J. stated (at para. 44) that for errors to be considered to have been made in good faith, they must be reasonable. In my view, if the police conduct crossed the line and the arrest was too aggressive, it was motivated entirely by good faith, which is therefore reasonable. It was not an egregious act of misconduct such as the unnecessary tasering of Mr. Walcott, which justified a Charter remedy of a stay.

[82] The second prong of the Grant test was explained by the Court of Appeal in R v. Orlandis-Habsburgo, [2017] O.J. No. 4143 (CA). Doherty J.A. observed (at paras. 133-134) that a court must examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests.

[83] Here, it would be entirely different if the force was intentional and excessive but those are not my findings of fact. Even with the police conduct crossing the line, if it were the case, the record is thin about the extent of the impact on the Applicant's security of the person so as to have a meaningful impact on his Charter rights. Nobody knew about the concussion at the time and as I said before, the Applicant didn't complain, nor did it appear he was impacted. He was polite and courteous. This factor is somewhat neutral because of the low degree of impact on his security of the person engaged by s.7.

[84] The third factor favors adjudicating a case on its merits and favors inclusion of the evidence. On balance, with a very technical breach motivated by good faith, with little impact on the security of the Applicant, the balance would tilt in favor of including the breath samples. The Applicant would not have met his onus under s.24(2).

Did the Crown prove the Applicant's ability to drive was impaired by the consumption of alcohol beyond a reasonable doubt?

[85] Mr. Gerges argued the evidence does not prove to the requisite degree that the Applicant's ability to operate a motor vehicle was slightly impaired by alcohol.

[86] I disagree.

[87] The test for impairment is a factual issue based on all the evidence: Stellato, supra. In Bush, supra, at para. 47, the Ontario Court of Appeal cited Stellato with approval and held, "slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47." I must consider all the observations and testimony to determine whether the totality of the evidence is rationally consistent with any other conclusion than guilt in so far as slight impairment is involved. I must ask if there is a reasonable, innocent (i.e. not impaired) explanation for it all. If so, I must acquit: R. v. Villaroman, 2016 SCC 33 at para. 13.

[88] In my view, there is no other explanation aside from the reasonable one that the Applicant was impaired by alcohol and his ability to drive a motor vehicle was slightly impaired by alcohol. To be sure, I have disabused my mind of his evidence on the voir dire where he admitted he was impaired by alcohol and his admission that the vehicle began to veer, suggesting he was losing control. In fact, I've disabused my mind of all the voir dire evidence as it didn't apply to the trial. Instead, I've considered all the circumstances including: (i) the unexplained accident, (ii) the circumstances of the collision, (iii) the attempt to extricate the car in the face of a serious collision, (iv) the failure to follow police commands to turn off the vehicle and unbuckle (v) the smell of alcohol from the vehicle, (vi) the smell of alcohol from the Applicant's breath which permeated the cruiser after he was sitting in the back, (vii) the unsteadiness on his feet, (viii) PC Bandstra's observation of his bloodshot eyes, (ix) PC Soto's reliable recollection of slurred speech and (x) the lack of any evidence to suggest the unsteadiness was due to an obvious injury. When considered together, all of this evidence points to the only inference that the Applicant was impaired by alcohol and his ability to operate a motor vehicle was also impaired, even to a slight degree, by alcohol consumption.

C. CONCLUSION

[89] For the above reasons, the s.7 Charter application is dismissed. The COQBT is admissible and conclusive proof of the exceed 80mgs count as there was no other attack on its admissibility or reliability.

[90] The evidence also proves beyond a reasonable doubt the Applicant's ability to drive a motor vehicle was impaired by alcohol.

[91] There will be findings of guilt on both counts. I will invite submissions on the application of the Kienapple principle.

Released: January 27, 2020

Mr. Justice F. Javed

[1] This decision is from Justice O'Donnell and unreported in 2014. It is cited with approval by Jaffe J. in Melo, supra at para. 101.