Court File and Parties

Ontario Court of Justice

Date: February 19, 2020

Court File No.: Brampton 18-11335

Between:

Her Majesty the Queen

— and —

Michelle Hartjes

Before: Justice M. M. Rahman

Heard on: October 30 and 31 and December 30, 2019

Reasons for Judgment released on: February 19, 2020

Counsel:

• Patrick Quilty, for the Crown
• Douglas Lent, for Michelle Hartjes

RAHMAN J.:

1. Overview

[1] The defendant, Michelle Hartjes, is charged with impaired driving and driving with excess blood alcohol (over 80). On the morning of September 20, 2018, Ms Hartjes was pulled over by Peel Regional Police Constable Jaime Peach. Cst. Peach had seen Ms Hartjes leave an LCBO shortly before stopping her. After trying to have Ms Hartjes blow into an approved screening device (ASD), the officer decided that Ms Hartjes was impaired and arrested her. Cst. Peach took Ms Hartjes back to 21 Division, where she had Ms Hartjes provide breath samples. Intoxilyzer tests revealed that Ms Hartjes' blood alcohol content was over 80.

[2] After these tests were completed, the officer in charge of the division decided that Ms Hartjes should be held for a bail hearing. Unfortunately, Ms Hartjes was not taken to court on September 20, despite having been detained since shortly after 9:00 am. Ms Hartjes was not taken before a justice of the peace until the afternoon of September 21.

[3] Ms Hartjes argues that her ss. 8, 9, and 10(b) Charter rights were violated. She asks this court to stay the proceedings against her or, alternatively, exclude the evidence on the over 80 charge. Ms Hartjes says that Cst. Peach did not have sufficient grounds to arrest her for impaired driving. She also argues that the police did not facilitate her consultation with her counsel of choice. Ms Hartjes also says that the police did not take her before a justice as required by the Criminal Code, making her detention unlawful and arbitrary. Finally, putting the Charter aside, Ms Hartjes argues that there is insufficient evidence for this court to find that her ability to drive was impaired.

[4] The Crown argues that there were no Charter breaches. The Crown's position is that Cst. Peach had ample grounds to arrest Ms Hartjes for impaired driving. Further, the Crown says that Ms Hartjes was not deprived of her right to contact her counsel of choice because the police tried to call the lawyer she asked for and, when they could not find his contact information, they put Ms Hartjes in touch with duty counsel at her request. The Crown also says that Ms Hartjes' detention was not rendered unlawful by the police's failure to take her to court on September 20 because, by the time Cst. Peach had completed other required tasks, a justice was effectively not available. Finally, the Crown argues that there is ample evidence that Ms Hartjes' ability to drive was impaired by alcohol, based both on the breath room video, and Cst. Peach's observations.

[5] These reasons explain why the Charter application is granted and Ms Hartjes' breath test results are excluded from evidence. These reasons also explain why I find Ms Hartjes not guilty of impaired driving.

2. The Charter Application

2.1. Section 8 and 9 of the Charter: Grounds to Arrest for Impaired Driving

2.1.1. Summary of the Evidence

[6] The Crown and defence versions of what took place before and after Cst. Peach pulled over Ms Hartjes are quite different.

2.1.1.1. Cst. Peach's Version

[7] Cst. Peach testified that she was parked outside an LCBO store in Brampton at 9:04 am. She saw Ms Hartjes go into the store and leave a minute later after buying something. Ms Hartjes accelerated quickly, squealing her tires, as she left the parking lot. She squealed her tires again as she drove onto Peel Centre Drive. The officer followed Ms Hartjes onto Clark Blvd. Cst. Peach testified that Ms Hartjes stopped at a green light for about five seconds and then continued. Cst. Peach then turned on her lights and pulled Ms Hartjes over. Ms Hartjes did not pull over immediately. Cst. Peach ended up stopping her cruiser on an angle to the left of Ms Hartjes' car.

[8] Cst. Peach said that, as she approached the car, Ms Hartjes opened her door. As Cst. Peach spoke with Ms Hartjes, she smelled a strong odour of alcohol from her breath. The officer decided to demand an ASD sample and asked Ms Hartjes to get out of her car. The officer described Ms Hartjes as having "poor motor skills." Cst. Peach said that Ms Hartjes touched her buckle as if to remove her seatbelt even though it was already off.

[9] Cst. Peach said that she demonstrated how to use the ASD. Before having Ms Hartjes blow into the device she asked her when she had her last drink. Ms Hartjes responded "last week." Cst. Peach testified that Ms Hartjes became upset before the ASD test and started yelling at her. Cst. Peach said she tried to calm Ms Hartjes down and had her blow into the device. Ms Hartjes' first two attempts to blow into the ASD were unsuccessful and the device displayed an "insufficient volume" message.

[10] After the second attempt, Cst. Peach said she noticed that Ms Hartjes had bloodshot, red-rimmed and watery eyes, and that Ms Hartjes was wearing heels. Cst. Peach had Ms Hartjes make a third attempt. This time, the officer testified, Ms Hartjes appeared to put her tongue on the mouthpiece as if she was spitting. This third attempt resulted in another "insufficient volume" message. At this point, Cst. Peach said that Ms Hartjes was getting upset and threw her arms up in the air. She insisted to the officer that she was giving a breath sample. Cst. Peach said that Ms Hartjes then staggered backwards and walked over to her car to lean on it for support. Cst. Peach also said that she could smell vomit, but could not see any. Cst. Peach said that, based on all of her observations, she formed the opinion that Ms Hartjes was impaired and arrested her for impaired driving.

[11] In cross-examination, Mr. Lent played portions of the video showing Ms Hartjes in the booking area of 21 Division. Cst. Peach said that the video showed that Ms Hartjes was unsteady on her feet and showed the same unsteadiness the officer had seen at the roadside.

2.1.1.2. Ms Hartjes' Version

[12] Ms Hartjes said she believed that the LCBO store did not open until about 9:30 am, though she could not be certain. Ms Hartjes testified that she had decided to go into the LCBO, while at the shopping plaza for another reason, to buy a gift for the friend with whom she had been living. She said that she did not go into the store immediately because there was a line-up outside, so she had to wait to go in. Ms Hartjes said she was in the LCBO much longer than the one minute Cst. Peach said she was. She estimated she was in the store for about 15 minutes. Ms Hartjes said this because she was going to buy a "Texas Mickey" which is a large, three-litre bottle of vodka. That particular item required a staff member to retrieve the item from a top shelf, and she estimated that process would have taken about 10 minutes.

[13] Ms Hartjes acknowledged that she may have squealed her tires as she drove out of the parking lot, because she was not used to the vehicle she was driving and she may have accelerated in a choppy manner. Ms Hartjes also acknowledged that she did not pull over immediately when she saw the lights on Cst. Peach's cruiser because she did not believe that she was being pulled over.

[14] Ms Hartjes said that when Cst. Peach first approached her, the officer asked her whether she had been drinking Listerine and, without giving her time to answer, asked what she had been doing in the plaza. Ms Hartjes said when she answered, Cst. Peach told her that she seemed intoxicated and that she would have Ms Hartjes do a roadside screening device test. Ms Hartjes acknowledged in cross-examination that she incorrectly told Cst. Peach that she had not had a drink in two days, but that she said this because she felt "under duress" and she meant that she had not had a drink that day.

[15] Ms Hartjes said she tried her best to do the tests and thought that she had provided a sample. She said Cst. Peach was angry with her and accused Ms Hartjes of deliberately trying to withhold her breath. Ms Hartjes agreed that she said "I am trying as hard as I can" but that she never raised her voice or yelled at Cst. Peach. Ms Hartjes also said that she was no more than two feet away from her car when she was trying to blow into the ASD. Ms Hartjes also said that she was not unsteady on her feet and does not believe that she ever lost her balance, and that, if she did, it was because of the shoes she was wearing.

2.1.2. Parties' Positions

[16] Mr. Lent argues that Cst. Peach did not have sufficient grounds to arrest Ms Hartjes for impaired operation and to demand samples of her breath. Mr. Lent says that the court should reject Cst. Peach's evidence about what she saw at the roadside. He says that the court cannot accept Cst. Peach's evidence that Ms Hartjes was unsteady on her feet at the roadside because she also described Ms Hartjes as appearing unsteady on video when she was at 21 Division. Mr. Lent also says that any stumbling by Ms Hartjes would have to be minimal because there was only three to four feet from where she was standing to her car. Mr. Lent points to the fact that the officer herself noticed that his client was wearing heels. He also says that Cst. Peach's credibility is suspect because Ms Hartjes would not have spent only a minute in the LCBO buying an item that would have required her to get staff to help with.

[17] Mr. Quilty argues that Cst. Peach had ample grounds to arrest Ms Hartjes. He urged me to accept Cst. Peach's roadside observations and says that it is clear from Ms Hartjes' presentation on the breath room video that she was in fact displaying signs of impairment. Mr. Quilty also says that Ms Hartjes' evidence about the timing of events is clearly incorrect because she arrived at the police division at 9:38 am and could not have spent 15 minutes in an LCBO that opened at 9:30 am.

2.1.3. Analysis

[18] Before explaining my conclusion on this issue, I will deal with the factual dispute between the parties about what took place during the traffic stop.

[19] I have difficulty accepting Cst. Peach's evidence that Ms Hartjes displayed unsteadiness on her feet or displayed any motor movement difficulties. I say that because when the officer was shown video clips of Ms Hartjes walking at the police division, she said that the video showed Ms Hartjes walking in an unsteady manner. She also said that it showed Ms Hartjes having difficulty walking. I have reviewed those portions of the video shown to Cst. Peach in court, and I do not see Ms Hartjes displaying any motor movement difficulties, nor do I see her being unsteady on her feet. Rather, Ms Hartjes was standing and moving with ease, even while handcuffed. Given Cst. Peach's description of Ms Hartjes being unsteady on her feet when she clearly was not, I have trouble accepting her evidence about Ms Hartjes stumbling backwards after blowing into the ASD.

[20] In making this finding, I do not find that Cst. Peach was being untruthful about the events at the roadside. Just as with the video clips she was shown, she described what she believed she saw. She honestly believed that Ms Hartjes was unsteady on her feet in the video clips she was shown. Clearly, she was not being dishonest when she gave those answers because the video was being played in open court. However, her answers about what she saw on the video give me concern about the reliability of her observations and whether she was seeing what really happened or what she was expecting to happen.

[21] Without the observations of Ms Hartjes' alleged motor movement difficulties at the roadside, all that is left are Cst. Peach's observations of Ms Hartjes' having red-rimmed eyes, and alcohol on her breath. Those observations are all signs of alcohol consumption. They are not signs of impairment. The Crown has failed to establish that Cst. Peach had reasonable grounds to demand that Ms Hartjes provide breath samples.

[22] I also find that Ms Hartjes' evidence on the voir dire that she did not stumble establishes that Cst. Peach lacked reasonable grounds to arrest Ms Hartjes for impaired driving. I am not concerned that Ms Hartjes being incorrect about the timing of her visit to the LCBO affects the reliability or credibility of her evidence. Ms Hartjes said she was unsure that the LCBO opened at 9:30 am. It is quite possible that she was incorrect in her estimate about how much time she spent in the store, but did enter the store when it opened at 9:00 am. I am not concerned that her evidence about what happened at the roadside is unreliable. Indeed, Ms Hartjes' evidence about the distance between her car and the police cruiser was consistent with Cst. Peach's evidence. I accept Ms Hartjes' evidence that she did not stumble in the very small distance of three to four feet between her car and Cst. Peach's cruiser.

[23] As a result, the Crown has failed to prove the search was reasonable, and Ms Hartjes has established that she was unlawfully detained. The police breached her ss. 8 and 9 Charter rights.

2.2. Section 10(b): Facilitating Contact With Counsel of Choice

2.2.1. Cst. Peach's Version

[24] When Cst. Peach advised Ms Hartjes of her right to counsel at the roadside, Ms Hartjes asked to call a lawyer named Paul Damien. She told the officer that Mr. Damien was a duty counsel lawyer whom she had spoken to the last time she had been at the police division. Cst. Peach testified that, when she arrived at 21 Division (at 9:39 am), she searched for Mr. Damien's contact information on the law society's website, but was unable to find any information on a lawyer by that name. Cst. Peach said that at 9:50 am, Ms Hartjes then asked to speak to duty counsel. Cst. Peach said that Ms Hartjes made this request to speak to duty counsel spontaneously, explaining that she did not have money for a lawyer. Cst. Peach also said that she told Ms Hartjes that she could not find Mr. Damien's number.

2.2.2. Ms Hartjes' Version

[25] Ms Hartjes testified that she asked to speak to Paul Damien because she had spoken with Mr. Damien before as duty counsel the last time she had been in custody. Ms Hartjes said that Cst. Peach did not have any conversation with her about having been unsuccessful finding Mr. Damian's contact information. Ms Hartjes said that she was simply taken into the consultation room and put on the phone with duty counsel. Ms Hartjes said that, had she been told that Cst. Peach had been unable to find Mr. Damien's number, she would have called one of her close friends, Louis Fried, who is a litigation lawyer and whose number she knows by heart. She said she also could have called Ben Heath, whose number she had in her phone. Ms Hartjes said the police did not give her the option of calling someone to help find the number of a lawyer and that if she had been given the chance she would have called Mr. Hunter.

2.2.3. Parties' Positions

[26] Mr. Lent says that the police violated Ms Hartjes' right to contact counsel of choice. He says that the police did not ask Ms Hartjes if there was someone who could have helped her find a lawyer's number, nor was she asked if she had a second choice of counsel to call.

[27] Mr. Quilty says there was no s. 10(b) breach here because the police allowed Ms Hartjes to call duty counsel when she asked to do so. He says that there is no evidence that a person named Paul Damien is even a lawyer and that Ms Hartjes could have gotten hold of him. Mr. Quilty also says that the police were not constitutionally obligated to ask Ms Hartjes about calling a friend to get a lawyer's number, whether it was Mr. Damien's or someone else.

2.2.4. Analysis

[28] Before getting to my legal analysis of the s. 10(b) issue, I must resolve the factual dispute about whether Cst. Peach told Ms Hartjes that she could not find Mr. Damien's number and whether Ms Hartjes spontaneously asked to call duty counsel.

[29] I accept Cst. Peach's evidence that she told Ms Hartjes that she could not find Mr. Damien's number, and that Ms Hartjes then asked to call duty counsel. It is apparent from the booking video that Cst. Peach had a brief conversation where she appeared to be explaining something to Ms Hartjes. This was after a period of time where Cst. Peach appeared to be using her phone while standing at the booking desk. I also accept Cst. Peach's evidence that, after learning that the officer could not find Mr. Damien's contact information, it was Ms Hartjes who asked to speak to duty counsel because she could not afford a lawyer. I accept that version of events because Ms Hartjes had initially identified Mr. Damien as a duty counsel lawyer. It is not surprising that she was the one who again asked to be put in touch with duty counsel. I do not accept Ms Hartjes' evidence that she was simply put in a room and not told anything about Cst. Peach's attempt to find Mr. Damien. That seems contrary to the interaction, captured on video, between Ms Hartjes and Cst. Peach before she was taken to the counsel consultation room. I also note that, on the breath room video, Cst. Peach recounted with Ms Hartjes what had taken place, including that Ms Hartjes had asked to speak to duty counsel, and Ms Hartjes agreed with the officer's description of events.

[30] Because Ms Hartjes asked to speak to duty counsel right after learning that the police were not able to locate Mr. Damien's number, there was no breach of s. 10(b). The police were not required to ask Ms Hartjes if she wanted to call someone to find Mr. Damien's number or the number of another lawyer. She did not ask to do so. Instead she asked to speak to duty counsel. The police complied with that request. By doing so, they facilitated her contact with counsel of choice. Simply because her choice was speaking to duty counsel does not mean they failed to facilitate her consultation with counsel of choice. Ms Hartjes has not established a breach of her s. 10(b) rights.

2.3. Section 9 of the Charter: The Failure to Take Ms Hartjes Before a Justice in a Timely Manner

2.4. Summary of the Facts

[31] The key facts underlying Ms Hartjes s. 9 claim are not really in dispute.

[32] Ms Hartjes was detained by Cst. Peach at about 9:04 am on September 20. Her breath tests were done by 10:44 am. She was placed in a holding cell at 21 Division at 10:45 am. That cell did not have a mattress or pillow. The "bed" was a concrete slab. Ms Hartjes was alone in the small cell.

[33] Cst. Peach said that the officer in charge of the division had decided that Ms Hartjes would not be released on police bail but would be held for a bail hearing. At the time, Ms Hartjes was on release for two separate sets of charges and a bench warrant had been issued because she failed to appear in court. Cst. Peach said that at 11:17 am she drove to 22 Division, which is directly across the street from this courthouse, to pick up the original arrest warrant. That warrant had an endorsement on it that permitted an officer to execute the warrant by releasing Ms Hartjes on a police bail, rather than taking her to court. Cst. Peach also testified that she would have told the officer in charge of the division about the warrant's endorsement permitting release from the station, though she acknowledged she had nothing in her notes about such a discussion.

[34] Cst. Peach testified that she then decided to get medication that Ms Hartjes said she needed. She left 22 Division at 11:34 am. Cst. Peach then went to the address Ms Hartjes was staying at and got the medication from the home's owner, Gordon Hunter. She arrived there at 11:52 am and received the medication from Mr. Hunter at 12:10 pm. She arrived back at 21 Division at 12:17 pm and started to do the paperwork for Ms Hartjes' matter.

[35] When asked why she did not have another officer assist her in picking up the warrant or medication, Cst. Peach said that no other officers were available. She testified that she would have made inquiries about other officers being available and may have learned of her colleagues' unavailability by looking at ICAD, the internal police computer system. She had no notes of how she learned that no other officers were available and she could not recall whether she spoke to a staff sergeant about getting assistance. She simply had a note that no other officers were available.

[36] Cst. Peach was unable to get the required bail package paperwork done in time to have Ms Hartjes taken to court the same day. She said that getting the bail package ready was "quite a process" because it involved dictating an occurrence and arrest report, scanning documents, and then having everything approved by a staff sergeant. Cst. Peach explained that there was a 1:30 pm cut off time to get Ms Hartjes to the courthouse. She explained that the 1:30 pm deadline was put in place by "prisoner escort in the basement of this courthouse" and agreed it was staffed by her police force.

[37] Because the police did not get Ms Hartjes to court on September 20, she remained in the holding cell at 21 Division until 8:30 am on September 21. She was taken from her holding cell and transported to the courthouse to appear in bail court. Ms Hartjes testified that she did not appear in court until close to 5:00 pm. Her friend, Mr. Hunter, attended the courthouse on September 21. He had called the police division the day before and had been told that Ms Hartjes would be held overnight. Mr. Hunter said that he went to court on September 21 to bail his friend out. He spoke with someone he believed to be a police officer who said that Ms Hartjes had not arrived yet. When he returned to court, at about 4:00 pm, he was told that her matter had already been dealt with. Mr. Hunter had not been told that bail had been set and that he could sign her out from jail on the weekend. He ended up returning to court on Monday to bail out Ms Hartjes. Mr. Hunter also explained that he would have been available to attend court on September 20 had Ms Hartjes appeared that day.

2.4.1. Parties' Positions

[38] Mr. Lent argues that Ms Hartjes' s. 9 Charter rights were breached because the police did not comply with s. 503 of the Criminal Code. He says that the Crown has not provided any reasonable justification for the police's failure to take Ms Hartjes before a justice in a timely way. Mr. Lent argues that the 1:30 pm cut off time that Cst. Peach referred to is a police policy and is not a justification for the police abdicating their legal obligations under the Criminal Code. Mr. Lent also argues that there was no reason that his client was held for a bail hearing. He says that the bench warrant had been endorsed to permit his client to be released and that the warrant did not require her to be brought to court.

[39] Mr. Quilty says that there was no Charter breach. While he agrees that Ms Hartjes was not taken before a justice for more than 24 hours, he said that there is a good reason for it in this case. Though he did not press the argument very far, Mr. Quilty says that, because the courts had established a 1:30 pm cut off time for prisoners, and that bail court did not open until 9:30 am, there was realistically no justice available to the police within 24 hours. Mr. Quilty also argues that the delay in taking Ms Hartjes to court was justified because Cst. Peach had to get the warrant and medication for Ms Hartjes. He also says that the police cannot be blamed if the court has a policy of not accepting prisoner after 1:30 pm. He says that it was a series of unfortunate events that led to Ms Hartjes not being brought to court in a timely way. Mr. Quilty also says that the police were justified in not releasing Ms Hartjes from the station. He says that she was out on two sets of outstanding charges and that when she finally did appear in bail court, a justice decided that she could only be released with a surety.

2.4.2. Analysis

[40] I agree with Mr. Lent that the police violated Ms Hartjes' s. 9 Charter rights because they did not comply with s. 503 of the Criminal Code.

[41] Section 503(1) of the Criminal Code imposes a duty on police to take an arrested person before a justice. Where a justice is available within 24 hours, s. 503(1)(a) requires the police to bring a person they have arrested before a justice "without unreasonable delay" and in any event within 24 hours.

[42] The Supreme Court of Canada has made clear that "twenty-four hours is the outer limit of what is a reasonable period where a justice is available within that period." This provision is meant to ensure that the accused's detention is made known to an independent judicial officer as soon as possible to ensure that he or she is not held incommunicado. It also permits the accused's detention to be reviewed by an independent judicial officer. The provision codifies the long-standing common law requirement to bring an accused before a justice without unreasonable delay. In R. v. Simpson, Goodridge C.J.N. observed that s. 503 "may be one of the most important procedural provisions of the Criminal Code" and stressed the need to bring an accused, who is not released on police bail, before a justice without delay:

Where a person is arrested with or without a warrant, it is the duty of the arresting officer to ensure that that person is not detained any longer than is absolutely necessary and that, if he or she is not authorized by law to bring about the release, the person is brought before a justice of the peace who may determine whether the detention should continue or not and, if it is not to continue, what lawful conditions should be attached to the release. [emphasis added]

[43] There is no question that Ms Hartjes was not taken before a justice within 24 hours. I reject the argument that no justice was not realistically available within 24 hours. Ms Hartjes was arrested on a weekday morning. She was in custody less than 10 km away from this courthouse. There was more than one justice available.

[44] Because there was a justice available, the police breached Ms Hartjes' s. 9 Charter rights by not taking her before a justice without unreasonable delay. The police did not comply with either the letter or spirit of s. 503(1)(a). The delay here was not reasonable. It is entirely unclear to me why Cst. Peach prioritized getting a hard copy of an arrest warrant to getting Ms Hartjes to court in a timely way. Cst. Peach would have known, or ought to have known, that she had to have her bail package ready in time to have Ms Hartjes brought to court in time. The same statute that the police used to detain, arrest and charge Ms Hartjes required them to ensure that Ms Hartjes was taken before a justice without delay.

[45] Moreover, I do not accept Mr. Quilty's submission that it is unclear whether it is the court or the police whose policy it is not to accept prisoners after a certain period of time. There is no evidence it is the court's policy. The only evidence before me is that it was the police's policy. Cst. Peach did initially say that it was "the courts" that created the 1:30 pm deadline. However, in cross-examination, when Mr. Lent asked some clarifying questions, Cst. Peach testified that it was the police's policy, because she said it was the policy of the people who receive the prisoners at the courthouse. She confirmed that those people are employed by her own police force.

[46] Although the Crown accepts that Ms Hartjes did not appear before a justice within 24 hours, I will address the issue of when she actually did finally make that appearance, since the parties did not agree on this point. I cannot accept Mr. Quilty's argument that it was likely that Ms Hartjes was actually taken before a justice earlier in the day than she remembers. He urged the court to rely on judicial experience and take judicial notice that it would be likely that Ms Hartjes would at least have been taken into court in the morning and had her matter held down. I cannot accept this reasoning.

[47] The only evidence I have on the timing of Ms Hartjes' first appearance before a justice is her own and Mr. Hunter's. In any event, even if I were to rely on judicial experience, I would find that it is in fact quite possible that, on a busy day, Ms Hartjes would not have appeared before a justice until later in the day. I accept Ms Hartjes' uncontested evidence about the timing of her appearance. It is apparent to me that Ms Hartjes was not taken before a justice until well into the afternoon on September 21. While it may not have been 5:00 pm (given Mr. Hunter's evidence that she had been dealt with by about 4:00 pm), I accept that it was later in the afternoon and not first thing in the morning.

[48] Although I find that the police breached s. 9 by not complying with s. 503, I will also briefly address Mr. Lent's overholding argument that Ms Hartjes ought to have been released on police bail. I cannot accept Mr. Lent's argument that there was anything unreasonable in the police's decision to hold his client for a bail hearing. I say that principally because, once she did appear before a justice, that justice determined that she could only be released to a surety. Mr. Lent does not challenge the reasonableness of that decision. It is unclear to me, then, how he can challenge the reasonableness of the officer's decision. If a surety was appropriate, clearly the police's decision to hold Ms Hartjes for a bail hearing was a reasonable one, since they could not have imposed the requirement of a surety.

2.5. Is a Stay of Proceedings Appropriate?

[49] Mr. Lent argues that this court should enter a stay of proceedings on both charges against his client.

[50] In R. v. Babos, the Supreme Court set out the following three requirements a court must consider in deciding whether to stay proceedings:

(1) There must be prejudice to the accused's 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;

(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."

[51] Ms Hartjes' application for a stay engages the so-called residual category, where the impugned state conduct risks undermining the integrity of the judicial process. I will consider the three requirements in Babos as they relate to this residual category.

2.5.1. Prejudice to the Integrity of the Justice System

[52] I cannot find that Ms Hartjes has demonstrated the level of prejudice to the integrity of the justice system necessary to warrant a stay of proceedings.

[53] A stay should not be imposed liberally as a remedy, used every time a trial court disapproves of the police's conduct. The circumstances warranting a stay of proceedings will be exceptional. To warrant a stay, the conduct must be so serious that it would undermine the public sense of decency or fair play. A stay will not normally be an appropriate remedy unless it appears that the particular state misconduct is systemic or will continue into the future. As the Supreme Court stated in Canada (Minister of Citizenship and Immigration) v. Tobiass:

For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well -- society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue.

[54] The Supreme Court did not foreclose the possibility of obtaining a stay of proceedings where only one instance of state misconduct is established. As the Supreme Court held in Tobiass, a single instance of Charter-infringing conduct may result in a stay if it so serious that simply proceeding with the trial would constitute a new and ongoing abuse. However, the court cautioned that "only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice."

[55] I am troubled by the police's treatment of Ms Hartjes and their disregard of her Charter rights. I am most troubled by their neglect of her right to be taken before a justice without undue delay. As explained above, the right to be taken before a justice is one of the most important procedural rights in the Criminal Code. It bears directly on a person's liberty. To make matters worse, Ms Hartjes' unconstitutional detention was in a facility not meant to hold someone overnight. Police holding cells are meant to hold prisoners for the short term. It is appalling that she was held in a cell, without a mattress or pillow, for almost 24 hours.

[56] I confess that it is tempting to grant a stay of proceedings here. The police took what I would describe as a casual approach to Ms Hartjes' Charter rights. Several officers likely would have known she was in that cell for nearly 24 hours. It is likely at least two staff sergeants would have realized that she was going to be detained for that long and in those conditions. That is unacceptable. The police prioritized enforcing the punitive and restrictive sections of the Criminal Code while giving short shrift to those sections of the same Act that placed a duty on them to protect the rights of a person in their charge. They are required to follow both kinds of provisions equally.

[57] However, despite this misconduct, I conclude that Ms Hartjes has not established that the first stage of the Babos test must lead to a stay. Charter remedies are not meant to punish the police. They are prospective in nature. A stay of proceedings (like the decision to exclude evidence) is not a penalty for bad behaviour. It is a prospective remedy aimed at preserving the reputation of the administration of justice. The police's conduct in this case was improper and troubling. But I cannot find that this is one of those rare cases of serious abuse that should lead to a stay of proceedings. Indeed, in other cases where the police have not complied with s. 503, courts have held that a stay of proceedings was not appropriate. I also cannot find that it is part of a systemic problem that will continue if I do not grant a stay of proceedings.

[58] The first stage of the Babos test does not favour granting a stay.

2.5.2. Alternative Remedy

[59] I also find that a stay of proceedings is not appropriate, because there is an alternative effective remedy.

[60] The focus at the second stage of the Babos test is "whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward." In this case, I find that excluding the evidence is a suitable alternative remedy. The exclusionary test set out by the Supreme Court of Canada in R v. Grant, recognizes that there will be serious breaches and that s. 24(2) of the Charter serves to remedy such breaches. This is not a case where Ms Hartjes will be left without a remedy for the breach of her rights. As I explain the next section of these reasons, the Charter breaches here result in exclusion of the Intoxilyzer results.

2.5.3. Balancing

[61] Having found that the first two stages of the Babos test do not warrant a stay of proceedings, there is no need to engage in the balancing exercise required by the third stage.

2.5.4. Conclusion Regarding the Request for a Stay

[62] I conclude that, despite the police's misconduct in this case, Ms Hartjes has not met the high standard set out in Babos to warrant a stay of proceedings. Having concluded that a stay is not appropriate, I will now explain why the alternate remedy of excluding the evidence is.

2.6. Section 24(2)

[63] Excluding the evidence against Ms Hartjes amounts to the alternative effective remedy for the Charter breaches here. The Grant inquiry clearly requires me to exclude the evidence. Though my previous comments probably explain my reasoning sufficiently, I will still go through the steps of the Grant inquiry to explain why exclusion is appropriate in this case.

[64] The first step of the Grant inquiry focuses on the seriousness of the Charter breaches. The police breached Ms Hartjes' Charter rights from their initial encounter with her and while she remained in their custody. Even if the initial ss. 8 and 9 breaches were not serious on their own, the subsequent s. 9 breach aggravated the earlier breaches. It was part a pattern of unconstitutional conduct. Cst. Peach chose to prioritize other tasks, such as securing the original warrant, over getting Ms Hartjes to court. If the problem here was that no other officers were available to help Cst. Peach perform the other tasks that she prioritized over getting Ms Hartjes to bail court, then the failure here is due to a lack of resources. That does not assist the Crown in establishing that this was a minor breach. I have no evidence that there was some sort of emergency or other such event that police were responding to. The police should have enough resources to take care of people in their custody subject to exceptional circumstances. I also note that Cst. Peach was not acting by herself here and it was not ultimately her decision to keep Ms Hartjes in custody. As I said above, the officers in charge of the division during the time Ms Hartjes was in custody were ultimately responsible for her being there. What happened here was a form of negligence by the police to comply with an important procedural provision of the Code. The breaches here were very serious. This step of the Grant inquiry favours exclusion.

[65] The second step of the Grant inquiry also favours exclusion. Ms Hartjes' unlawful detention had a significant impact on her Charter-protected interests. Had the initial ss. 8 and 9 breach at the roadside been the only Charter violations I would not have found a significant impact on Ms Hartjes' Charter-protected interests. However, they were not the only breaches. Ms Hartjes' liberty interest was affected for almost the entire time she was in police custody.

[66] I do not accept the Crown's submission that the breach only involved those hours that Ms Hartjes was in custody after the 24-hour mark. Twenty-four hours is not a target. It is the outside limit of what is reasonable. Ms Hartjes had the statutory and constitutional right to be taken before a justice without unreasonable delay. She should have been taken to court promptly and should have seen a justice on September 20. She was a candidate for bail and Mr. Hunter would have been available to bail her out. Instead, she was remanded and spent a weekend in jail. Even if I do not consider the time she spent in jail after being remanded in custody, I still find that the impact of the breaches on her liberty interest was significant.

[67] Finally, though the third step of the Grant inquiry favours admission of the evidence, it cannot save the evidence from exclusion. Where the first two steps of the Grant inquiry strongly favour exclusion (as they do here), the third step will seldom, if ever, lead to admission.

[68] The results of Ms Hartjes' Intoxilyzer tests are excluded under s. 24(2) of the Charter.

3. The Impaired Driving Charge

[69] As I explained above, I do not accept Cst. Peach's roadside observations of Ms Hartjes' motor movement difficulties. I will not repeat my reasoning. I have also reviewed Ms Hartjes' breath room video and her movements on the booking video and cells video. On their own, I cannot conclude from Ms Hartjes' appearance on those videos that she was impaired, even slightly, to the criminal standard of proof. I do note that some of Ms Hartjes' speech patterns and her behaviour in the breath room video might give someone pause and make them wonder if she is in fact under the influence of alcohol. However, I saw Ms Hartjes in court and I heard the way she speaks and conducts herself. She has an unusual manner. Her speech does not always sound normal when she speaks. In fact, and meaning no disrespect, Ms Hartjes' manner of speaking and her affect could make her seem intoxicated. In making these observations, I am only considering her behaviour during the court proceedings and not her testimony, the content of which applied only to the voir dire. In short, I cannot be convinced beyond a reasonable doubt from the admissible evidence in this case that Ms Hartjes was impaired.

4. Conclusion

[70] Because I have excluded the Intoxilyzer test results under s. 24(2) of the Charter, there is no evidence of Ms Hartjes' blood alcohol concentration. She is not guilty of that charge. And because on the remaining evidence, I am unable to conclude that Ms Hartjes was impaired by alcohol. I find her not guilty of the impaired driving charge.

Released: February 19, 2020

Justice M. M. Rahman