Ontario Court of Justice

Date: January 10, 2023

Between:

Her Majesty the Queen

— and —

Kyle Fisher

Before: Justice Berg

Released on: January 10, 2023

Counsel: L. Welch, for the Crown S. May, for the defendant

Berg J.:

[1] It is alleged that on July 30, 2021, Kyle Fisher failed or refused to provide a sample of his breath. As the defendant has alleged breaches of his Charter- protected rights, it was agreed that this matter would proceed in a blended fashion. Thus, all Crown and all defence evidence would be applicable to both the trial proper and the voir dire.

The Evidence

[2] I heard from two witnesses at this trial. The Crown called the investigating officer, Constable Stéphane Walter. Then, I heard from Mr. Fisher in his own defence. I will commence with a summary of the constable’s evidence.

[3] I wish to state at the outset that I find Mr. Walter to have been a reliable and credible witness. It will come as no surprise to anyone who was present during the evidentiary portion of this trial or the submissions by counsel that I have concerns about how this officer conducted his investigation of Mr. Fisher. But I wish it to be clear that any criticisms I make are not to be taken as aspersions against his honesty or reliability.

[4] At approximately 2:00 a.m. on the day in question, this officer was parked in the centre median of a road in the City of Ottawa. He was taking care of certain administrative duties. At 2:01 a.m., his attention was drawn by the sound of a loud exhaust coming from behind him. He testified that the sound was as if the vehicle did not have a muffler. He looked and saw only one motor vehicle behind him, that which he came to learn was being driven by Mr. Fisher. The officer referred to it in his testimony as a “monstrosity” of a truck. It was a Ford F-series pick-up that appeared even at first sight to have been modified significantly with two exhaust chimneys emitting black smoke, chassis suspended very high off the ground, and despite having oversized tires protruding from the truck body, there were no mud guards. Constable Walter then made the decision to conduct an immediate traffic stop pursuant to s. 216 Highway Traffic Act. The Crown filed several photos of the conveyance in question as exhibits at this trial. It is not contentious but that Constable Walter had reason to perform this traffic investigation.

[5] Mr. Walter testified that since the fall of 2020, it has been his practice during every traffic stop he initiates between the hours of 5:00 p.m. and 5:00 a.m. to make an ASD demand and conduct an alcohol screening test. During cross-examination, he allowed that he was not aware of any other officer of the Ottawa Police Service who followed his example. The power to make such a demand in the absence of a reasonable suspicion has been permitted since 2018 as s. 320.27(2) Criminal Code now reads

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

[6] I return to the narrative. The officer stopped Mr. Fisher at 2:01 a.m. He then ran the licence plate to determine whether there were any safety issues. Mr. Walter saw another police car nearby and radioed for that officer to provide back-up. The second patrol car parked right behind Mr. Walter’s cruiser. It was at that point that Constable Walter got out of his patrol vehicle. He went over to his colleague. Mr. Walter had not been able to obtain an ASD at the beginning of his shift. As it was his invariable practice to make an ASD demand of drivers at traffic stops from 5:00 p.m. to 5:00 a.m., he asked the other officer for an ASD and received one. It was now 2:02 a.m. Constable Walter turned the ASD on and tested it. He then walked over to where the defendant was parked. It was now 2:03 a.m.

[7] It is clear from the evidence of Mr. Walter that he had made the determination to make the ASD demand before he was actually in possession of an ASD. It was and is, after all, this officer’s invariable practice to make such a demand whenever he stops someone pursuant to the HTA in the stated time period.

[8] Mr. Walter stood by the driver’s door; its window was down and Mr. Fisher had his driver’s licence out. The other police officer stood by the passenger side. Mr. Fisher was the only occupant of the truck. Mr. Walter introduced himself and explained the reasons for the HTA stop. He also explained that he was going to make an ASD demand and did so within two minutes of effectuating the traffic stop. After reading out the demand, he asked Mr. Fisher whether he understood. “No, I don’t” was the response he received. Mr. Walter asked what part he did not understand and it was his evidence that the defendant immediately became argumentative. Mr. Fisher said that Constable Walter had no grounds and that he, Fisher, wished to speak to Walter’s supervisor. The constable explained that the demand was indeed lawful. Mr. Walter then made a second ASD demand; it was now 2:04 a.m. Mr. Fisher did not respond. The officer explained the relatively recent change to the Criminal Code that allowed for demands in these circumstances. He further explained that Mr. Fisher was required to comply. The latter insisted that Mr. Walter had no grounds to make an ASD demand and again indicated that he wished to speak to a supervisor. Mr. Walter then explained the consequences of not complying with the ASD demand.

[9] This argument continued. The constable gave full instructions as to the use of the ASD and demonstrated its use. Mr. Walter even went so far as to hold out the ASD to Mr. Fisher; it was the officer’s testimony that Mr. Fisher did not take it. Then, at 2:07 a.m., Mr. Walter told the defendant that that was his last chance to provide a sample of his breath: “I demand that you provide it.” At 2:08 a.m., as Mr. Fisher had not made an attempt to provide a sample and was not complying, the officer decided to arrest him for refusal to do so. He instructed the defendant to get out of his truck. Mr. Fisher asked why and was told by the constable that it was to be arrested for refusal to provide a breath sample.

[10] Mr. Fisher eventually exited his vehicle. There is some debate as to how that occurred. Frankly, I think that nothing turns on the differences between the evidence of Constable Walter and the defendant on this point.

[11] He was placed under arrest at 2:09 a.m. He was handcuffed to the rear. The rights to counsel were read out at 2:10 a.m. before the defendant was searched incident to arrest. Upon being asked whether he understood those rights, he responded by making reference to a future lawsuit against the police for the arrest. When asked whether he wished to call a lawyer, he responded that he did not have one. There does not appear to have been a mention at that point of Legal Aid duty counsel although the existence of that service would have been referenced during the reading out of the informational component of the right to counsel.

[12] Constable Walter then placed Mr. Fisher in the back of his police vehicle. At 2:17 a.m., the handcuffs were removed and then replaced with Mr. Fisher’s hands now to the front. Mr. Fisher had complained that they were on too tight. The officer then proceeded to examine the defendant’s vehicle. He prepared ten Provincial Offence Tickets for various offences pursuant to the Highway Traffic Act. The HTA investigation was over at 3:31 a.m. At that point, Mr. Walter began to prepare the release documents. I note here that Constable Walter testified that he had known from the time he arrested the defendant that he was going to be released at the roadside. In other words, he was not going to be made to have a bail hearing or even be taken back to the police station for release. Mr. Fisher refused to sign the release documents.

[13] The officer testified that the handcuffs were removed and the defendant released at 3:38 a.m. By that point, Mr. Walter had prepared ten Provincial Offence tickets. He told me that he could have kept on going but he had recognized that he had to release Mr. Fisher. On August 4, the officer attended at the impound lot where Mr. Fisher’s truck was being kept and continued his POA investigation. He issued six more tickets at that time; to be clear, Mr. Fisher was not in attendance at the impound facility when the tickets were prepared. He had to be served later on.

[14] Constable Walter testified during cross-examination that he was aware that an accused has to be released without any unreasonable delay, that release was to be done as soon as practicable. However, the constable allowed that he had held Mr. Fisher for approximately one and a half hours because he, the officer, had wanted to hand Mr. Fisher the Provincial Offence Tickets. He denied having kept Mr. Fisher for that length of time in order to punish him. Mr. Walter agreed with Mr. May’s suggestion that he never asked the accused if he wanted to speak to counsel while Mr. Fisher was in the back of the police cruiser.

[15] The only other witness at the trial and voir dire was Mr. Fisher. He described pulling over and turning off the motor when he saw Constable Walter signal him. The officer walked over and advised that he had stopped him due to the lack of mudguards on the truck. He then asked for a breath sample because it was late at night. Mr. Fisher testified that he did not understand the connection between mudguards and a breath sample and so asked Mr. Fisher for his legal authority to make the ASD demand. The officer’s response was “Because it is late at night.” Mr. Fisher explained to me that he believed that an officer would have had to have “probable cause” to be allowed to legally make the demand. He testified that he then told the constable that he was overwhelmed by the situation.

[16] I would like to pause for a moment. Leaving aside the issue of whether being “overwhelmed” is a legal defence, my sense of Mr. Fisher after observing him in this courtroom is that he is far from a timorous, shy, wallflower. Put another way, I find it hard to believe that he was ‘overwhelmed” as he described. I return to the narrative.

[17] It was the defendant’s evidence that he then asked the constable to show him the law that said he had the authority to make the demand in the present circumstances. I note that Mr. Walter testified that Mr. Fisher never said show me the law in writing or any words to that effect. It is, of course, trite law that a police officer would not here have had to show a detained person the text of his statutory authority. It was the defendant’s evidence that the officer responded to the effect of provide a sample or you will be charged. Mr. Fisher asked that a supervisor be called to attend. That did not happen. In his testimony, Mr. Fisher then reiterated that he felt overwhelmed by the situation and expressed the view to me that he did not think that he had been given a fair chance to provide a breath sample. Given my earlier comment about this sense of being “overwhelmed”, it will come as no surprise to anyone that I reject this portion of Mr. Fisher’s evidence. To be clear, I accept Mr. Walter’s version of the events.

[18] Mr. Fisher testified that he did not intend to not provide a breath sample. He just wanted to see the reason in writing. While that may possibly be true, it is also irrelevant. One cannot insist on something that one does not have a legal right to as a condition precedent to doing something that one has a legal responsibility to perform. Likewise, Mr. Fisher’s testimony that if the officer had explained to him, he would have provided the breath sample is, even if true, of no consequence. If the officer was legally allowed to make the demand, then Mr. Fisher was legally required to comply. Mr. Fisher does not get to set the parameters of his compliance by requiring that the officer first satisfy Mr. Fisher’s conditions precedent. During cross-examination, Mr. Fisher agreed with the suggestion that Constable Walter had asked him several times to provide a sample of his breath. He was released at the scene and allowed to go on his way.

[19] Mr. Fisher testified that he had had a cell phone on him when he was arrested. However, it was taken from him upon his arrest and only returned when he was released. It was his evidence that he would have called a lawyer during the period that he was in the back of the cruiser. I note that when Mr. Welch asked him whether he had told the officer that he had no lawyer to call, Mr. Fisher would not answer the question. I had to caution him and he finally stated in court that “I did not tell him I did not have lawyer.” Mr. Fisher’s non-responsiveness to some questions during cross-examination impacted negatively on his credibility. It was Mr. Fisher’s evidence that while the constable did loosen the handcuffs while the defendant was in the scout car, his hands remained handcuffed to the rear.

The Alleged Charter Breaches

[20] The Form 1 prepared by the defence pleads breaches of Mr. Fisher’s Charter rights as follows:

a. that due to the invalid ASD demand made by Constable Walter, there was a breach of Mr. Fisher’s section 8 Charter right. This breach is predicated on the constable allegedly not having an ASD in his possession when he made the decision to make the ASD demand. This ground was abandoned during submissions.

b. that Mr. Fisher was also arbitrarily detained thereby violating section 9 Charter when he was kept in the rear of the police cruiser for approximately 1.5 hours even though he was releasable; this breach is said to have occurred after Mr. Fisher was arrested for the alleged Criminal Code offence presently before this court. I will refer to this alleged breach as the overholding;

c. that Mr. Fisher’s s. 10(a) Charter right was violated; this ground was abandoned during submissions;

d. that as there was a nine-minute delay between the traffic stop and the reading out of the rights to counsel, Mr. Fisher’s s. 10(b) Charter rights have been violated.

[21] There is a lack of precision in the Form 1 about what remedy is being sought by the defendant. First of all, the application states that Mr. Fisher “respectfully submits that a stay of proceedings should be issued in this matter.” Section 24(1) Charter is not mentioned. It then states “In the alternative, any evidence obtained as a result of these breaches should be excluded from evidence pursuant to s. 24(2) of the Charter.” As a stay would be a remedy only pursuant to s. 24(1), Mr. Fisher is seeking relief pursuant to both sub-sections. This was confirmed during submissions as was the defence position that the stay was being sought for the overholding s. 9 breach.

[22] I will first be deciding the s. 10(b) and related s. 24(2) issues. My next step will be the trial proper should the Crown’s case survive the initial analysis. Finally, if the Crown’s case establishes prima facie the guilt of Mr. Fisher, I will then turn to the overholding and s. 24(1) analysis.

Alleged Section 10(b) Charter Breach

[23] This alleged breach is predicated on the lapse of nine minutes between the commencement of the traffic stop and the provision of the informational component of the rights to counsel. This allegation is easily and quickly dealt with once one looks at the facts. Constable Walter stopped Mr. Fisher at 2:01 a.m. He did so pursuant to the HTA. As per his unvarying practice, he simultaneously had the intention to commence a Criminal Code investigation pursuant to s. 320.27(2). He did his due diligence by running the licence plate of the truck that he had stopped and then got out of his cruiser, walked over to a colleague’s vehicle, obtained an ASD, tested it, and then walked over to where Mr. Fisher was waiting. He arrived at the defendant’s truck at 2:03 a.m. He advised Mr. Fisher of the reason for the stop and then made the breath demand. This took seconds. There was then the exchange between the two men as to whether Mr. Walter had the jurisdiction to make the demand. As a result of this conversation, the officer arrested Mr. Fisher at 2:09 a.m. The rights to counsel were read out at 2:10 a.m. after the defendant had been handcuffed but before he was searched incident to arrest.

[24] There is no requirement that an officer provide the rights to counsel as part of a HTA detention. Furthermore, and drawing a parallel with the earlier law concerning what was then s. 254(2) Criminal Code (see, for example, R. v. Quansah, 2012 ONCA 123 at paras. 21 ff.), there would appear to be no requirement that an officer making a breath demand pursuant to his or her s. 320.27(2) authority provide the rights to counsel prior to making that demand. Therefore, the only period relevant to this present 10(b) analysis is that from the moment of the arrest of Mr. Fisher for refusing to provide the breath sample and the reading out of the rights to counsel by the constable. That period was at most, one minute. Several seconds of that minute were indeed taken up by the process of handcuffing the defendant. However, in the circumstances of this case, I think nothing turns on this miniscule delay. There has been no breach of the informational component of Mr. Fisher’s s. 10(b) rights.

The Trial Proper

[25] I will now turn to the trial proper. Has the Crown seemingly proven its case beyond a reasonable doubt. Mr. May has raised two issues. Was there a proper ASD demand made by Constable Walter? Secondly, was there a refusal to comply by the defendant with that demand?

[26] Constable Walter’s ASD demand was proper. He had stopped Mr. Fisher in the course of the lawful exercise of powers under an Act of a provincial legislature. He had in his possession an ASD at the time he made his demand. While he did not have that instrument on his person when he stopped the defendant’s truck, he had obtained it within seconds of effectuating the traffic stop and took it over to the truck immediately. I find that the constable’s actions were compliant with s. 320.25(2).

[27] Was there a refusal by Mr. Fisher to Mr. Walter’s proper demand? Yes, there was. Mr. Fisher set up conditions precedent that the officer would have to have complied with before he, Fisher, would provide a breath sample. Those conditions precedent had no basis in law. Moreover, the apparent fact that Mr. Fisher was not aware of the relatively recent change to the Criminal Code is of no significance. Section 19 Criminal Code is the source of the well-known adage, “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.” Mr. Fisher was required to provide a sample of his breath upon the proper demand by Constable Walter. I accept the constable’s evidence that it became clear to him that Mr. Fisher was refusing to provide a sample of his breath. I find that Mr. Fisher did indeed refuse to provide the sample.

[28] All the elements required for the Crown to prove its case beyond a reasonable doubt are indeed present. I turn now to the remaining issue.

The Overholding and s. 24(1)

[29] Mr. Fisher submits that his rights pursuant to s. 9 Charter were violated by an episode of overholding and that the present charge should be stayed pursuant to s. 24(1) Charter. It was conceded, at least implicitly, that due to lack of a causal or temporal nexus between the breach and the evidence in support of the Crown case, an application for the exclusionary remedy pursuant to s. 24(2) Charter must fail (for a recent review of the law on this point see R. v. Cairney, 2022 ONCJ 458). Thus, Mr. Fisher seeks a s. 24(1) stay. The Crown position is, put simply, that there was no breach of Mr. Fisher’s s. 9 Charter rights but if there was such a breach, a stay of these proceedings is not the appropriate remedy as the present matter is not one of the clearest of cases.

[30] Mr. Fisher bears the legal burden of establishing the alleged s. 9 breach on a balance of probabilities. Should the defence satisfy their onus, an evidential burden may arise requiring the Crown to explain the reasons for this detention.

[31] I find that there was a clear breach of Mr. Fisher’s s. 9 Charter rights when Constable Walter kept him detained in the police vehicle while he conducted an HTA investigation from roughly 2:17 a.m. to 3:31 a.m., a period of one hour and fourteen minutes. The period of detention actually both proceeded and continued after this time period. However, the detention both prior to and after the HTA investigation would have occurred even if Constable Walter had not decided to closely examine the truck and as Mr. Fisher has not pleaded any breach of his rights involving the manner in which he was detained, it is only the aforementioned one hour and fourteen minutes that were in breach here.

[32] Mr. Walter testified that the reason he detained Mr. Fisher during this period was that he had wanted to hand Mr. Fisher the Provincial Offence Tickets that were the result of his HTA investigation. Mr. Walter was wrong to do so. Mr. Fisher was releasable at the scene soon after his arrest. Indeed, if we remove the time period during which the HTA investigation was going on, that is what occurred. He was arrested some eight minutes before the commencement of the investigation and then released at 3:38 a.m., seven minutes after it was completed. Mr. Fisher should have been released roughly fifteen minutes after he was arrested. That quarter of an hour was sufficient to search him, provide the rights to counsel and the cautions, prepare and serve the documentation with respect to the Criminal Code offence and then release him. It would have been up to Mr. Fisher at that point whether he wished to remain to be handed the POTs or to have them served on him at a later date. That is what appears to have happened with the POTs that were generated by Constable Walter’s further HTA investigation of the truck on August 4; Mr. Fisher was not present at the impound yard to receive those tickets.

[33] The Supreme Court of Canada dealt with a situation in R. v. Aucoin, 2012 SCC 66 that while not identical to that in Mr. Fisher’s matter, provides some instruction. Police stopped Mr. Aucoin for driving with an improper licence plate on his car. The officer noticed the smell of alcohol on Mr. Aucoin’s breath and as Mr. Aucoin was a newly licensed driver and thus required to have a blood alcohol concentration of zero while driving, the officer made an ASD demand. The test revealed the presence of a level of alcohol in Mr. Aucoin’s blood that would have been, but for his novice driver status, legal. As a result, the police officer decided to impound the car and issue a traffic ticket to Mr. Aucoin. Moldaver J. for the majority described at paragraph 4 what occurred next.

Because it was dark outside and the lighting was poor, Constable Burke chose to sit in the front seat of his cruiser to write out the ticket. There were a lot of people milling around and Constable Burke was concerned that the appellant might walk away and disappear if he were allowed to remain outside of the police vehicle. Accordingly, Constable Burke decided to secure the appellant in the rear of his cruiser while completing the paper work.

As a prelude to placing Mr. Aucoin into his cruiser, the officer conducted a pat-down search of his person. Illegal drugs were found as a result of that search. As part of the analysis, the Supreme Court examined whether the detention of Mr. Aucoin in the rear of the cruiser had been legal. Paragraphs 35 – 40 of the majority decision states

[35] To be clear, I do not see this case as turning on whether Constable Burke had the authority to detain the appellant in the rear of his police cruiser, having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case.

[36] The existence of a general common law power to detain where it is reasonably necessary in the totality of the circumstances was settled in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725. That case moved our jurisprudence from debating the existence of such a power to considering whether its exercise was reasonably necessary in the circumstances of a particular case. As Abella J., for the majority, observed:

The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk. [Emphasis added; para. 31.]

[37] That brings me to what I consider to be the flaw in the trial judge’s analysis in this case. Given the adverse impact that the decision to secure the appellant in the rear of the cruiser would have on his liberty and privacy interests, I am of the view that a more stringent test than the one applied by the trial judge was required to support her determination that Constable Burke’s actions were lawful in the circumstances.

[38] Constable Burke knew that as a prelude to securing the appellant in the rear of his cruiser, he was going to do a pat-down search on him for reasons of officer safety and the appellant’s safety. His reason for wanting to secure the appellant was to prevent the appellant from walking away and disappearing into the crowd. The trial judge accepted the officer’s evidence in that regard. It. was late at night, the street was crowded with people, and the appellant’s vehicle was off-limits to him.

[39] Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat — knowing that this would also entail a pat-down search — detaining the appellant in that manner had to be reasonably necessary. [2] In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter: Clayton, at para. 20.

[40] Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke’s actions, though carried out in good faith, were not reasonably necessary.

[34] Moldaver J. commented further at paragraph 43.

I caution, however, that a different factual matrix may well have supported a finding of reasonable necessity. And where such a finding is made, I respectfully disagree with the minority view that “the balance will generally not favour” securing a detainee in the back of a police cruiser (para. 86). In the context of a straightforward motor vehicle infraction, I recognize that it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser. But where reasonable necessity exists, no further balancing is required.

[35] The matter before me was not a case where there were concerns that it would have been unsafe to release Mr. Fisher due to his blood alcohol concentration. Nor was this an incident where the investigating officer wished to continue an investigation into the criminal matter post-arrest. The Criminal Code would have required the constable to have released Mr. Fisher as soon as was practicable. As I have already indicated, that would have been approximately a quarter of an hour after he was arrested. The procedural convenience of providing the POTs to Mr. Fisher at the same time as he was released on the criminal charge could not trump his Charter protected right to be safe from arbitrary detention. The detention of Mr. Fisher from 2:17 a.m. to 3:31 a.m. was here arbitrary in the sense that it was an unreasonable exercise of police authority having regard to all the circumstances.

[36] The present case of overholding is different than that dealt with by Latimer J. of the Ontario Court of Justice in R. v. Jones, [2020] O.J. No. 4295, a case which was brought to my attention by Mr. Welch. Mr. Jones had been released some two hours after having provided breath samples into an intoxilyzer at the police station. In the interim, “[a]fter receiving Mr. Jones’ test results, the arresting officer completed paperwork such as the vehicle seizure, administrative driver’s licence suspension and other Criminal Code related notices. This included a breath certificate and a promise to appear” (at paragraph 5). Mr. Jones submitted that this two-hour delay had been excessive, arbitrary, and a violation of his s. 9 Charter rights. Justice Latimer found, at paragraph 17, that “I am not satisfied that the completion of these documented-related tasks, in the context of this particular type of investigation, constitutes an arbitrary detention. In these specific circumstances, the police conducted themselves, I find, in a reasonably prompt manner.” The tasks performed by the police in Jones were directly related to the Criminal Code investigation that had led to him being charged. That is not the case in the matter before me. As well, I do not take Latimer J. to be saying that in all cases a two-hour delay is warranted.

[37] Returning to the case at bar, I have considered whether the fact that Mr. Fisher was not given the opportunity by Constable Walter during the period of overholding to call a lawyer is in aggravation of the s.9 breach. However, on the basis of the evidence before me, I find that Mr. Fisher has not shown on the balance of probabilities that he actually would have called a lawyer at that time.

Remedy

[38] I turn now to the issue of whether a s. 24(1) stay is the appropriate remedy in this case. That sub-section reads “[a]nyone 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.” There has been a breach of Mr. Fisher’s section 9 Charter rights. This court is here a court of competent jurisdiction.

[39] The Supreme Court of Canada has reviewed this remedial section in Vancouver (City) v. Ward, 2010 SCC 27 when examining the availability of pecuniary damages as a result of a violation of a person’s constitutional rights. Summarizing an earlier decision, the unanimous court stated at paragraph 20 the following:

The general considerations governing what constitutes an appropriate and just remedy under s. 24(1) were set out by Iacobucci and Arbour JJ. in Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3. Briefly, an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made: Doucet‑Boudreau, at paras. 55‑58.

[40] It is important to keep in mind that a stay of proceedings is appropriate rarely and only in “the clearest of cases” (R. v. Babos, 2014 SCC 16 at paragraph 31). The Ontario Court of Appeal in R. v. Gowdy, 2016 ONCA 989 has provided the following guidelines where a stay is sought for an abuse of process.

[57] Cases necessitating a stay of proceedings for an abuse of process generally fall into two categories. The “main” category is where state conduct compromises the fairness of an accused’s trial. The “residual” category captures where there is no threat to trial fairness but the state conduct risks undermining the integrity of the judicial process: Babos, at para. 31. There is no issue here that the media release had any impact upon trial fairness.

[59] The standard according to which courts are to determine whether to stay proceedings has three requirements:

i. prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome; ii. no alternative remedy capable of addressing the prejudice; and iii. where uncertainty persists after requirements i. and ii. have been considered, whether the interests in favour of granting a stay prevail over society’s interests in having a final decision on the merits.

See Babos, at para. 32; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 54, 57.

[60] The first requirement recognizes that there are limits on the type of state conduct society will tolerate in the prosecution of offences. Sometimes, state conduct will be so disturbing that having a trial, even a fair trial, will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. The question that requires answer in connection with the first requirement is whether proceeding to trial in light of the state conduct would do further harm to the integrity of the justice system: Babos, at paras. 35, 38.

[61] For the second requirement, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Since the prejudice with which we are concerned in the residual category is prejudice to the integrity of the justice system, remedies must be directed towards that harm. In this category, we do not furnish redress to an accused for a past wrong done to him or her. Rather, we focus on whether an alternate remedy, short of a stay, will adequately disassociate the justice system from the impugned state conduct going forward: Babos, at para. 39.

[62] The third requirement – a balancing of interests – is of great significance in the residual category. Balancing is only required when uncertainty remains after consideration of the first two requirements. What the court is asked to decide is which of two options – staying proceedings or holding a trial – better protects the integrity of the justice system. Relevant factors include but are not limited to:

i. the nature and seriousness of the impugned conduct; ii. the isolated or systemic and ongoing nature of the conduct; iii. the circumstances of the accused; iv. the charges faced by the accused; and v. the interests of society in having the charges determined on their merits.

See Babos, at para. 41.

[63] In the residual category, it must appear that the state misconduct is likely to continue into the future, or that pursuit of the prosecution will offend society’s sense of justice: Babos, at para. 36; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 SCC 322, [1997] 3 S.C.R. 391, at para. 91.

[64] An accused who seeks a stay of proceedings under the residual category faces an onerous burden on account of the “clearest of cases” threshold and the balancing of societal interests that forms an integral part of the analysis undertaken by the trial judge. In the residual category, cases warranting a stay of proceedings are “exceptional” and “very rare”: Babos, at para. 44; Tobiass, at para. 91. See also R. v. Conway, 1989 SCC 66, [1989] 1 S.C.R. 1659, at p. 1667.

While no abuse of process has been alleged, this analysis is appropriate in the present case.

[41] The present case does not engage the main category. Constable Walter’s detention of Mr. Fisher did not compromise the fairness of this trial. However, what it could do if not remedied is undermine the integrity of the judicial process. The Court cannot be seen as standing by and ignoring behaviour of this sort even where, as in the present case, Constable Walter was not motivated by bad faith. The Court must disassociate itself from such non- Charter compliant actions by the state.

[42] That, absent an appropriate and just remedy, Mr. Fisher would have no way of seeking redress for the breach of his s. 9 Charter rights is not the central issue. To reiterate the quote from Babos in the Court of Appeal’s decision in Gowdy, per the remedial category “we do not furnish redress to an accused for a past wrong done to him or her. Rather, we focus on whether an alternate remedy, short of a stay, will adequately disassociate the justice system from the impugned state conduct going forward.”

[43] Which would better protect the integrity of the judicial system in the present case, the continuation of the trial or a stay of proceedings? As indicated in the appellate decisions of Babos and Gowdy, I must now examine the relevant factors. The arbitrary detention of Mr. Fisher in the present circumstances had the effect of rendering the protections provided by s. 9 Charter nugatory. Even absent bad faith, this was a very serious breach of Mr. Fisher’s rights. While it is unclear to me whether this type of overholding breach is systemic in nature, it could easily repeat itself, although, I hasten to add, not by Constable Walter who has followed this trial closely. Thus the effect of the sending of a message that this type of detention is not going to be tolerated by the courts would tend to support a stay of proceedings. Mr. Fisher is facing a charge of refusing to provide a breath sample. There are no allegations of impaired driving. While there is always a societal interest in having drinking and driving-type cases determined on their merits, it cannot be said that the facts in the present case render that interest particularly high. Finally, the lack of any alternative remedy for this breach of Mr. Fisher’s rights suggest that this trial should be stayed.

[44] Taking into account the foregoing, I find that this is indeed an exceptional case where a stay is warranted. Therefore, pursuant to s. 24(1) Charter, I order the stay of the present proceedings.

Released: January 10, 2023 Signed: Justice Berg