ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA (P) 1553/11
DATE: 20121217

B E T W E E N:

Cynthia Nadler
HER MAJESTY THE QUEEN
for the Respondent

Respondent

• and -

Ranbir S. Mann
Robin McClelland
for the Appellant

Appellant

REASONS FOR JUDGMENT

On appeal from the judgment of Khoorshed J.
dated November 22, 2011

TULLOCH J.

Overview

[ 1 ] This is an appeal by the accused, Robin McClelland, from her conviction on November 22, 2011 on the charge of care or control while over 80.

[ 2 ] The appellant bases the appeal on four grounds:

• the Crown failed to make full and frank disclosure, breaching her right pursuant to s. 7 of the Canadian Charter of Rights and Freedoms to make full answer and defence;

• the investigative detention was unlawful and arbitrary, breaching her s. 9 Charter rights;

• the search and seizure of the breath samples that followed the investigative detention were thus unlawful and unreasonable, violating her s. 8 Charter rights; and

• the trial judge misapprehended a number of points of law with respect to the detention and search/seizure issues.

The appellant is asking for:

• a stay of proceedings pursuant to s. 24(1) of the Charter ;

• in the alternative, an order allowing the appeal and entering an acquittal;

• in the alternative, an order allowing the appeal and ordering a new trial before a different trial judge, with directions that full disclosure be made to the defence.

FACTS

[ 3 ] The facts of this case are not much in dispute. On March 11, 2011 at 2:50am, the appellant was seen in the parking lot of JJQ’s, a bar/pool hall in Mississauga. The investigating officer, Constable Shirley, observed a white Honda Civic in the parking lot, stationary but running with the lights on. The appellant was in the driver’s seat, along with two passengers.

[ 4 ] Cst. Shirley pulled his car behind the appellant’s car, inside the parking lot. As he exited his car and moved towards the appellant’s car, the appellant moved her car forward into the next parking spot. Cst. Shirley yelled for her to stop.

[ 5 ] Cst. Shirley then engaged the appellant, who informed him that she and her friends had been at the bar, and she was driving them home. She also stated she had had “a couple of drinks” and that her last drink was 30 minutes prior. At that point, Cst. Shirley read the appellant an Approved Screening Device demand (the defence alleged she was handcuffed before the ASD demand, but the trial judge found otherwise). The appellant registered a fail. She was arrested and taken to 11 Division, where she spoke to counsel and provided two breath samples – one registering a reading of 188mg and the other 177mg.

[ 6 ] Two other officers, Csts. Markham and Ord, were involved in this incident, but none of their notes were provided to the defence.

ISSUES

Issue #1: Did the trial judge err in ruling that disclosure of the notes of Csts. Markham and Ord were not required?

(a) Positions of the Parties

[ 7 ] Apparently, on the day of trial, the defence learned about the involvement of these two other officers for the first time. Counsel for the defence objected and stated that he had not been provided with the notes, and highlighted their potential usefulness. However, as the Crown points out, counsel did not seek a remedy for the missing notes – not an adjournment, nor a disclosure order, nor a stay of proceedings.

The Crown contends therefore that this issue is being raised for the first time on appeal, and does not meet the test in A.A. v. B.B. , 2007 ONCA 2 , 83 O.R. (3d) 561 for when a court will allow a party to raise a Charter issue for the first time on appeal. Furthermore, the respondent contends that there has been no prejudice to the appellant’s rights to make full answer and defence.

The appellant argues that she has a right to disclosure of all relevant information and that this lack of disclosure constitutes a s. 7 Charter breach, preventing the appellant from making full answer and defence at her trial: R. v. Stinchcombe, 1991 45 (SCC) , [1991] 3 S.C.R. 326; R. v. Horan , 2008 ONCA 589 , 237 C.C.C. (3d) 514, at para. 26 . As such, the appellant submits that the trial judge erred in ruling that the notes were “trivial and irrelevant”.

[ 8 ] The respondent Crown, on the other hand, relies on R. v. Brown, 1993 114 (SCC) , [1993] 2 S.C.R. 918, cited in A.A. v. B.B. , 2007 ONCA 2 , 83 O.R. (3d) 561, at para. 9 :

First, there must be a sufficient evidentiary record to resolve the issue. Secondly, it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial. Thirdly, the court must be satisfied that no miscarriage of justice will result from the refusal to raise such new issue on appeal

Rosenberg J.A. then notes in A.A. v. B.B. that the onus is on the party seeking to raise the Charter issue to demonstrate that they meet these requirements.

[ 9 ] The respondent Crown alleges the appellant has failed to discharge her onus and has not presented any evidence that justifies why she did not adequately seek remedies at trial, in relation to Csts. Markham and Ord’s disclosure.

[ 10 ] Further, the Crown relies on R. v. Bjelland , 2009 SCC 38 , 2 S.C.R. 651, at para. 21 :

[T]he Crown's failure to disclose evidence does not, in and of itself, constitute a violation of s. 7 . Rather, an accused must generally show "actual prejudice to [his or her] ability to make full answer and defence" ( R. v. O'Connor , 1995 51 (SCC) , [1995] 4 S.C.R. 411, at para. 74 ) in order to be entitled to a remedy under s. 24(1).

Analysis

[ 11 ] Section 7 of the Charter protects the right of the accused to make full answer and defence. To achieve this full answer and defence, the Crown must provide the accused with complete and timely disclosure: see Bjelland , para. 20 , and Stinchcombe. The Supreme Court in Bjelland cites, at para. 20 , Rosenberg J.A.’s explanation in Horan , at para. 26 , for the purpose underlying the Crown’s obligation to disclose:

Put simply, disclosure is a means to an end. Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond to the prosecution case and that in the result the verdict is a reliable one.

[ 12 ] Further, the Crown is correct to rely on Bjelland , para. 21 , for the principle that the Crown’s failure to disclose does not itself constitute a s. 7 Charter violation. Instead, the accused must show "actual prejudice to [his or her] ability to make full answer and defence": R. v. O'Connor , para. 74 .

[ 13 ] The appellant states that the police notes are important to the criminal proceedings because the notes provide the accused and her counsel with vital information, which informs decisions as to how to plead and how to conduct the defence. Counsel for the appellant does not, however, explain how there was actual prejudice in this case.

[ 14 ] Cst. Ord’s notes only relate to a male arrested at JJQ’s and Cst. Markham’s notes relate to the vehicle. Neither of these constables were the appellant’s arresting officer. Furthermore, the appellant does not explain how this prevented her from making full answer and defence, as such, she has not that her s. 7 Charter Rights have been violated. With respect to this issue, no real prejudice has been shown, and defence counsel’s failure to seek remedies at trial is indicative of that lack of prejudice.

[ 15 ] Accordingly, I would not give any effect to this ground of appeal.

Issue #2: Was the investigative detention in the parking lot an unlawful and/or arbitrary detention?

[ 16 ] This is the key issue in this case. Can a police officer investigate potential drunk driving offences in a private parking lot? If so, when and how? The next ground of appeal, whether or not the seizure of the breath samples constituted a violation of ss. 8 and 9 of the Charter , also flows from this issue.

The appellant submits that the Highway Traffic Act , R.S.O. 1990, c. H.8, does not apply to private parking lots, and so cannot validate what would otherwise be a random stop. The appellant also submits that, pursuant to R. v. Mann , 2004 SCC 52 , 3 S.C.R. 59, investigative detention can only be justified if the officer has some “articulable cause”. The appellant submits that given that this was a private parking lot, the officer did not have a reason to stop her. Accordingly, the trial judge applied the incorrect test regarding the common law police powers of investigation and detention.

[ 17 ] The Crown concedes that the initial stop of the car constituted a detention within the meaning of s. 9 of the Charter and that the subsenquent breath samples were a search as defined in s. 8 . However, the Crown argues that there was no violation of the appellant’s rights, as the conduct of Cst. Shirley was lawful.

The Crown further submits that R. v. Dillon (2006), 32 M.V.R. (5th) 13 (Ont. S.C.) , which the trial judge relied upon, is still good law, notwithstanding the fact that it was decided before R. v. Clayton , 2007 SCC 32 , 2 S.C.R. 725. The Crown submits that Clayton in fact serves to reinforce the reasoning in Dillon

Analysis

[ 18 ] While I agree that the Highway Traffic Act does not apply to private property or private parking lots and cannot be used to validate what would otherwise be a random stop on private property, I do not agree that the police were acting under the statutory authority of that Act in this case. Rather, they were operating under their common law ancillary powers to detain for investigative purposes. Furthermore, I do not agree that they did not have reasonable grounds to suspect that the appellant had committed the offence of driving a motor vehicle while over 80 mgs of alcohol per 100 ml of blood, considering the objective variable facts which the police had at the time. In addition, the test of articulable cause as set out in R. v. Simpson (1993) , 1993 3379 (ON CA) , 12 O.R. (3d) 182, has been superseded by the Mann test of reasonable suspicion when applied in these circumstances.

[ 19 ] It is now fairly settled law in Ontario that the Highway Traffic Act does not apply to private parking lots.

Section 216(1) of the Highway Traffic Act authorizes police acting in furtherance of their duties to stop drivers of motor vehicles, and s. 48(1) of the Act authorizes police to screen drivers of motor vehicles for blood-alcohol content. Both sections have been held to be limited in their application to drivers. Under the Act , the term “driver” is defined as “a person who drives a vehicle on a highway”, therefore these powers to stop and detain apply only to people driving motor vehicles on highways. If police purport to exercise one of these powers when the person detained was not observed driving a motor vehicle on a highway, courts in Ontario have held that the detention of that person was not justified, leading to a violation of the accused person’s rights under s. 9 of the Charter : see R. v. Boughen (2002), 30 M.V.R. (4th) 261 (Ont. C.A.), at paras. 4-5 ; R. v. Calder (2002), 29 M.V.R. (4th) 292 (Ont. S.C.), at paras. 51-58 ; R. v. Clarke (2005), 2005 15452 (ON CA) , 196 C.C.C. (3d) 426 (Ont. C.A.), at para. 29 .

[ 20 ] Therefore, the Highway Traffic Act cannot validate the detention that occurred in this case, and there is no other statutory justification. The detention must instead be justified under the common law police ancillary powers, as expressed in the English Court of Appeal case of R. v. Waterfield , [1963] 3 AII E.R. 659 (C.C.A.). This is the test which was adopted by the Supreme Court in Mann , at para. 24 . It is a two prong test. First, the court must determine whether the police conduct falls within the general scope of their duty under statute or common law, and second, whether the police conduct involves an unjustifiable use of powers associated with that duty. This test was further elucidated in Clayton , where the Supreme Court, at para. 22, cited Doherty J.A.’s reasons in Simpson , at paras. 35-37 , with approval:

The powers and duties of constables at common law were described in R. v. Waterfield , [1963] 3 All E.R. 659 (C.C.A.) at 661 :

In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

The powers of police constables at common law, often described as the ancillary police power, as set out in Waterfield have been accepted by the Supreme Court of Canada as part of the Canadian common law in several decisions rendered both before and after the proclamation of the Charter : see e.g. Knowlton v. The Queen (1973), 1973 148 (SCC) , 10 C.C.C. (2d) 377 (S.C.C.) at 379-80; Dedman v. The Queen (1985), 1985 41 (SCC) , 20 C.C.C. (3d) 97 (S.C.C.); R. v. Godoy (1999), 1999 709 (SCC) , 131 C.C.C. (3d) 129 (S.C.C.) at 135-36; R. v. Mann [(2004), 2004 SCC 52 () , 185 C.C.C. (3d) 308 (S.C.C.)], at 320-1. The power of the police to detain for investigative purposes in some circumstances and the power to search as an incident of arrest are two of the better known examples of the exercise of the common law ancillary police power: R. v. Mann , supra ; R. v. Caslake (1998), 1998 838 (SCC) , 121 C.C.C. (3d) 97 (S.C.C.) at 107-108.

Where the prosecution relies on the ancillary power doctrine to justify police conduct that interferes with individual liberties, a two-pronged case-specific inquiry must be made. First, the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty: Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA) , 131 C.C.C. (3d) 1 (Ont. C.A.) at 23-24. [Emphasis deleted.]

[ 21 ] In the case of Dillon , a case with a similar factual situation to the case at bar, Molloy J. adopted the same common law test as stated in Mann . She explained as follows at paras. 24- 26:

Our common law recognizes an ancillary police power to detain for investigative purposes. That power, however, is not unlimited. The Supreme Court of Canada has adopted the test for the exercise of the common law powers as expressed by the English Court of Appeal in R. v. Waterfield , [1963] 3 All E.R. 659 (C.C.A.) . This involves a "two-pronged analysis where the officer's conduct is prima facie an unlawful interference with an individual's liberty or property": R. v. Mann (2004), 2004 SCC 52 () , 185 C.C.C. (3d) 308 (S.C.C.) at para 24 .

The first stage of the analysis requires a consideration of whether the police conduct falls within the general scope of any duty imposed on the officer by statute or common law. The police have a duty to investigate crime and to protect life. Detecting impaired drivers and preventing them from operating cars on our highways is within the scope of those police duties: R. v. Dedman , 1985 41 (SCC) , [1985] 2 S.C.R. 2, 20 C.C.C. (3d) 97, 20 D.L.R. (4th) 321. In the case before me, the two officers were motivated by a concern about a potential impaired driver. Although he was not operating on the roadway, he was in a parking lot of an establishment that had closed, or was about to close, and his engine was running. It was a reasonable inference that his entry onto the public roadway was imminent. Their investigation of Mr. Dillon was therefore within the general scope of their police duty.

At the second stage of the analysis, the prosecution must demonstrate that the police conduct was a justifiable use of the powers associated with the duty. This requires a balancing of interests between the protection of the public by police carrying out their duty to prevent crime and the protection of the liberty interests at stake. The court must consider the necessity and reasonableness of the interference with liberty, as assessed in light of the nature of the liberty interfered with and the importance of the public purpose served: Mann at para. 26 . [Emphasis added.]

[ 22 ] Molloy J. found that an investigative detention in a parking lot was valid under the common law police powers to investigate, for the purpose of checking for impairment. She based this finding on R. v. Dedman , 1985 41 (SCC) , [1985] 2 S.C.R. 2, which ruled that detecting and preventing impaired driving is within the scope of general police duties, satisfying the first stage of the Waterfield test. As for the second, balancing stage of Waterfield , Dedman states that brief detention to check for sobriety is a minimal infringement of liberty when compared to the public interest.

[ 23 ] The subsequent Supreme Court decision in Clayton does not contradict or overturn Dillon , because it does not overturn Dedman or Mann , upon which Dillon relies. Instead, Clayton moves farther away from the more exacting articulable cause requirement or “clear nexus between the individual to be detained and a recent or on-going criminal offence” as described in Mann , at para. 34 . In addition, Dillon has been followed and mentioned in cases as recent as 2010. Accordingly, Dillon cannot be considered outdated law and the trial judge did not err in following its analysis.

[ 24 ] The trial judge, therefore, did not err in applying Dillon in deciding whether or not the appellant’s rights were breached.

[ 25 ] In examining the facts of this case using the Clayton two-prong framework to determine whether or not the constable’s conduct is an unlawful interference with the appellant’s liberties, in the first prong:

(a) the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue.

[ 26 ] In Clayton , citing Dedman at para. 69 , the Supreme Court explains that the duties of the police at common law include "the preservation of the peace, the prevention of crime, and the protection of life and property".

[ 27 ] In all the circumstances, I find that Cst. Shirley was acting within the purview of the above mentioned duties when he pulled into the parking lot to ensure there were no drug offences and to ensure that no patrons of the bar were going to drive home intoxicated. As he had explained, in the past, impaired drivers have been arrested leaving the bar after the closing hour.

[ 28 ] In addressing the second prong of the Clayton test:

(b) the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty.

In Clayton at para. 25 , the Supreme Court again cites with approval Doherty J.A. in Simpson . At p. 499, he sets out the test for assessing whether police interference with individual liberties can be justified:

[T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

[ 29 ] The trial judge in this case found that a bar is a place where drug activity and alcohol consumption causes possible danger to the public. Therefore, in the interest of the public the officer had the justification to sit and wait and monitor the parking lot. The trial judge also found that the constable had a need to investigate the matter in order to avoid peril to the public. As these are fact-based analyses, the trial judge is best positioned to evaluate the circumstances.

[ 30 ] The key issue here is whether or not there was “reasonable suspicion” on the part of the officer per Mann or an “articulable cause” per Simpson . In other words, was the officer’s subjective belief based on objectively verifiable indicators? In my view, it was. The two-pronged Clayton test is met, since the reason the accused was pulled over initially was because she drove her car to another parking spot when the police car pulled up behind her. The evasion, combined with the fact that she was outside a bar, after last-call closing hours, is a reasonable cause for suspicion. Although her utterance that she had consumed alcohol would not have been admissible on the trial proper, it formed a proper part of the officer’s reasonable suspicion.

Issue 3: Did the trial judge err in finding that there were reasonable and probable grounds to seize the breath samples from the appellant?

[ 31 ] As the prosecution has been successful in showing that the detention of the appellant was lawful and not arbitrary, the ASD sample was validly taken and the seizure of the breathalyzer samples from the appellant was lawful and within the powers of s. 254(3) of the Criminal Code . The ‘fail’ result on the ASD test provided the officer’s reasonable and probable grounds to demand a breathalyzer sample.

Issue 4: Did the trial judge misapprehend the evidence on material issues led before the court?

[ 32 ] It is clear that the trial judge was confused about certain portions of the evidence. He misunderstood what the officer said about how many people he had arrested coming out of the bar in the past. The trial judge misstated the evidence that the constable had testified that he had arrested ten prior impaired drivers. In fact, the constable testified that he had arrested someone coming out of that same parking lot for a drinking and driving offence in 2010, and that he had a “couple of three day suspensions in the parking lot.”

[ 33 ] The test for appellate intervention where there has been a misapprehension of evidence is defined in R. v. Lohrer , 2004 SCC 80 , 3 S.C.R. 732, at para. 2 :

Morrissey [(1995), 1995 3498 (ON CA) , 22 O.R. (3d) 514], it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction".

[ 34 ] This court is of the view that this was a minor misapprehension of evidence, on a peripheral issue, which does not meet the test in Lohrer and Morrissey . The precise quantum of accused arrested in the past in this parking lot is a minor detail – what is important is that this parking lot was known to the police as a location that cultivated a culture of drugs and impaired driving.

[ 35 ] While this is not a misapprehension of evidence, the trial judge also appears to suggest that the breathalyzer readings themselves could be taken as evidence of the justification for the initial detention. Clearly, the evidence seized cannot justify the initial suspicion. However, this error does not appear to play an essential part in the trial judge’s reasoning process resulting in a conviction and his focus is correctly on the preceding facts. He correctly determined that the fact that the appellant admitted to consuming alcohol 30 minutes prior was sufficient in law for the ASD demand.

[ 36 ] Therefore, I do not agree that the trial judge erred in these regards.

[ 37 ] With respect to the misapprehension of evidence alleged against the trial judge, while there were certain inaccuracies in his reasoning, on the whole, there was no overriding error. The evidence supports the conviction.

CONCLUSION

[ 38 ] Accordingly, the appeal is hereby dismissed.

Tulloch J.

Released: December 17, 2012

[ 39 ]

COURT FILE NO.: SCA (P) 1553/11
DATE: 20121217

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - ROBIN MCCLELLAND Appellant REASONS FOR JUDGMENT Justice M.H. Tulloch

Released: December 17, 2012