COURT FILE NO.: SCA(P) 514/13
DATE: 20140808
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
BARRINGTON DEHANEY Appellant
COUNSEL: Christina Sibian, for the Respondent Douglas Lent, for the Appellant
HEARD: July 4, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice W. Stead, dated April 10, 2013 at Brampton]
F. DAWSON J.
[1] Barrington Dehaney appeals from his convictions for impaired driving and operating a motor vehicle with a concentration of more than 80 milligrams of alcohol in 100 millilitres of blood, contrary to ss. 253(a) and (b) of the Criminal Code, R.S.C. 1985, Chap. C-46. The conviction pursuant to s. 253(b) was stayed conditionally on the basis of the rule against multiple convictions in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced to a $1,300 fine and a one year driving prohibition in relation to the conviction for impaired operation.
[2] Essentially four grounds of appeal are raised, although some of those grounds have multiple elements. First, the appellant submits that the trial judge erred with respect to the standard and burden of proof to be applied in determining the appellant’s submission at trial that the samples of his breath were obtained by the police in contravention of s. 8 of the Charter. Second, he submits that the trial judge erred in concluding that the arresting police officer was lawfully on the appellant’s driveway when she developed her grounds to arrest the appellant, also constituting a Charter violation that should lead to exclusion of the subsequently obtained evidence. Third, the appellant submits that the trial judge erred in finding that the breath samples were taken as soon as practicable. Fourth, the appellant submits that the trial judge erred by failing to find that the appellant was arbitrarily detained in contravention of s. 9 of the Charter when he was held in custody for approximately seven hours following completion of his second breath test, and further, that the trial judge erred in failing to enter a stay of proceedings pursuant to s. 24(1) of the Charter as a remedy for this s. 9 Charter violation.
Overview of the Evidence
[3] I will deal with these alleged errors in order after setting out the relevant factual background.
[4] Maria Swannel testified that she was a passenger in a car driven by her husband on May 19, 2012 when she saw a car being driven erratically at approximately 10:30 to 10:45 p.m. A call was placed to the police and the licence plate number of the vehicle was provided. At one point Ms. Swannel described the driver of the car as an older black male. At another point she described him as “kind of young”. She did not know the make of the car and told the 911 operator she thought it was gold or tan. Later, she thought the car was a Honda. The trial judge indicated he could place no weight on her in-dock identification of the appellant as the driver.
[5] Cst. Sophia Chow was the arresting officer. She testified that on May 19, 2012 she received a radio dispatch at 11:05 p.m. with respect to a possible impaired driver in the area of Central Parkway and Hurontario Street in Mississauga. Dispatch had run the licence plate involved and told Cst. Chow the vehicle was a silver Honda registered to 542 Lana Terrace. Cst. Chow testified that she drove to that address and parked across the street, still at approximately 11:05 p.m.
[6] Cst. Chow testified that a few minutes later a silver Honda with the licence number she had been advised of drove towards her and parked on the street in front of 542 Lana Terrace. She observed the driver get out of the vehicle. He stumbled and had difficulty as he made numerous attempts to close the driver’s door to the car. The driver was an older black male identified as the appellant.
[7] Cst. Chow testified that she exited her vehicle and approached the appellant as he walked up the driveway towards his home. When the officer spoke to the appellant she immediately noticed a strong odour of alcohol on his breath. The appellant was slurring his speech, he was swaying back and forth and drool was coming from his nose and mouth. His eyes were red-rimmed and watery. Cst. Chow testified she formed the grounds that the appellant’s ability to operate a motor vehicle was impaired by alcohol, arrested him for that offence at 11:08 p.m. and made a demand that he provide samples of his breath suitable for analysis to determine the proportion of alcohol in his blood.
[8] When the appellant’s rights to counsel were read to him at 11:10 to 11:11 p.m. he declined to speak to a lawyer. As his rights were being read he made it clear that he felt he had made it home and said that he wanted to go into his house and to be left alone by the police. At no time, however, did he tell Cst. Chow that she was not welcome on his driveway.
[9] The appellant testified at trial that when he drove up to his house he pulled into his driveway before backing into the street to park his car pointing in the opposite direction from which he had come. Cst. Chow testified that she did not remember seeing such a manoeuvre. The appellant denied that the officer was parked across the street. He testified that as he walked up his driveway the officer came driving quickly up his street, pulled into his driveway, jumped out of the police car in an aggressive fashion, told him that someone had called the police about his driving and then arrested him. On the appellant’s version, Cst. Chow had already made up her mind without formulating her own grounds for arrest or for a breath demand.
[10] Cst. Chow testified that the appellant’s account was incorrect. However, when testifying the officer said she “believed” she was parked across the street. She used the expression that “she believed” certain events occurred more than once. Her notes were missing a number of important details. She was a relatively inexperienced officer. Cst. Chow testified that while her notes were lacking detail she had a good independent recollection because this was her first impaired driving arrest. She was firm in recounting her observations that led her to conclude she had grounds to arrest the appellant and demand breath samples from him. The trial judge acknowledged that Cst. Chow’s notes might have been better, and her use of the phrase “I believe” but he nonetheless accepted her evidence and rejected the evidence of the appellant.
[11] Cst. Carlos Pinheiro was called as a Crown witness. He was the qualified breath technician who conducted Intoxilyzer tests on the appellant. A video recording of the breath test procedure was played for the trial judge and made an exhibit. Cst. Pinheiro received the appellant from Cst. Chow at 11:51 p.m. The first breath sample was taken from the appellant at 12:06 a.m. and produced a reading of 210 milligrams of alcohol in 100 millilitres of blood. The second breath sample was taken at 12:29 a.m. and produced a reading of 215 milligrams of alcohol in 100 millilitres of blood.
[12] Cst. Pinheiro testified that, while the appellant was cooperative, his speech was extremely slurred and he had a problem getting the cellophane wrapper off the Intoxilyzer mouthpiece. Physical sobriety tests were administered and the appellant performed poorly. All of this was visible on the audio-video recording of what occurred in the breath test room.
[13] I will make further reference to the evidence and the trial judge’s findings as I review each of the grounds of appeal.
The Standard and Burden of Proof on the s. 8 Charter Issue
[14] It was the appellant’s position at trial that Cst. Chow did not have the reasonable grounds required by s. 254(3) of the Criminal Code to make a lawful demand that the accused accompany her to provide samples of his breath suitable for analysis. This argument is based in part on the second ground of appeal, which I will deal with later, that the officer was a trespasser on the appellant’s driveway at the time she formulated her grounds; in part on the nature of the information which Cst. Chow received from the police dispatcher; and in part on the appellant’s evidence about how the arrest occurred.
[15] However, the appellant first submits that the trial judge erred by failing to recognize that because the breath samples obtained from the appellant constituted a warrantless search, the onus was on the Crown to demonstrate on a balance of probabilities that the search was reasonable, in the sense that it was properly authorized by law and carried out in a reasonable fashion. He further submits the trial judge misapplied the standard of proof. The appellant rests this submission on the comment of the trial judge, at p. 8 of the transcript of his oral reasons for judgment, that: “This is a contest of reliability and credibility between the investigating officer and the accused.” Having made that statement the trial judge then embarked upon his analysis, credibility findings and findings of fact in relation to whether Cst. Chow had reasonable grounds to make a demand that the appellant provide samples of his breath suitable for analysis.
[16] Having considered the trial judge’s reasons as a whole I find I am unable to accept the appellant’s submission. At no point did the trial judge expressly state that the burden was on the Crown on a balance of probabilities to prove that the warrantless search was reasonable. However, that standard and burden of proof are well known to judges presiding in the criminal courts. In R. v. MacDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 54, the Supreme Court of Canada cited its earlier judgment in R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at p. 664, for the proposition that trial judges are presumed to know the law which they work with every day. Also at para. 54 of MacDougall, the court held that when a trial judge does not express a particular standard of proof it will be presumed that the correct standard was applied unless it can be demonstrated by reference to the judge’s analysis that such was not the case. It seems to me that this proposition must extend to the burden as well as to the standard of proof. I will deal with the standard and burden of proof separately.
[17] I do not see any indication in the trial judge’s reasons that he misapplied the correct standard of proof. In the context of the standard of proof on a balance of probabilities the statement that the issue presented as a contest of reliability and credibility between the investigating officer and the accused does not have the same implications that it does in a situation where the applicable standard is proof beyond a reasonable doubt. Where the standard is proof beyond a reasonable doubt, words which imply that a trial judge saw the case as involving only two choices is an error because it excludes the third possibility of not being able to resolve a conflict and thus being left in a state of reasonable doubt. See R. v. Nimchuk (1977), 1977 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.); R. v. W.(D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, 93 C.C.C. (3d) 1. It seems to me that this is much less of a concern where an issue is to be decided on a standard of proof on a balance of probabilities; in other words, on a preponderance of the evidence.
[18] Turning to the allocation of the burden of proof, it is only in a context where the impugned words indicate that the trial judge saw the decision to be made as presenting a stark choice between two positions, when that is not the case, that a problem arises. I am not persuaded that the impugned words of the trial judge in this case do that. The trial judge’s words simply indicate the reality that the evidence of the investigating officer and the evidence of the accused about what happened immediately prior to the arrest and demand for a breath sample could not both be accurate. In the context of everything else that was said by the trial judge, that statement does not go so far as to indicate that in order for the appellant to prevail on the s. 8 issue, his version of events had to be accepted. In the absence of such a connotation it cannot be said that by these words the trial judge placed the burden on the accused, rather than on the Crown, where it belonged.
[19] In the circumstances of this case I am satisfied that the trial judge’s statement that the issue presented as a contest of reliability and credibility between the investigating officer and the accused, which served to introduce the issue in his oral judgment, does not reflect error. These were no more than words of introduction to the trial judge’s analysis of the conflicting evidence. The trial judge went on to consider the high level of the appellant’s intoxication and undertook a credibility assessment of the evidence of the police officer and the appellant. That analysis addressed the matters that had been raised by counsel in their submissions. The trial judge ultimately accepted the evidence of the officer and rejected the evidence of the appellant, as he was entitled to do.
[20] Given those findings, which are supported by the evidence, it is clear that the Crown had more than discharged its burden of establishing the reasonableness of the search on a balance of probabilities. The trial judge found that the officer had a report that a silver Honda with the licence number that appeared on the car she was observing had been reported to have been recently involved in erratic driving nearby. The trial judge accepted the officer’s evidence that she saw the appellant driving, saw him stumble as he exited the vehicle and watched as he had difficulty closing his car door. He rejected the appellant’s testimony about how the officer approached him and accepted the officer’s evidence that she noticed further signs of impairment, such as a strong odour of alcohol and unsteadiness, as soon as she approached the appellant.
[21] In short, the trial judge accepted evidence which established that Cst. Chow had reasonable grounds to arrest the appellant and reasonable grounds to demand a breath sample from him before she did either of those two things. In these circumstances the Crown had discharged its onus to establish the reasonableness of the search on a balance of probabilities.
[22] This ground of appeal fails.
Was Cst. Chow Lawfully on the Appellant’s Driveway?
[23] At trial the appellant contended that the investigating officer had no right to approach him on his driveway, which was his private property.
[24] In rejecting this submission the trial judge first noted that the officer had a report of an impaired driver operating the vehicle she observed drive up and park, and that the officer had seen the appellant stumble while exiting the vehicle and have difficulty closing the door. Although the trial judge did not refer to the “Waterfield test” (R. v. Waterfield, [1963] 3 All E.R. 659) he concluded from these facts that the officer was entitled to pursue the appellant onto his driveway. After referring to the officer’s observations of symptoms of impairment while on the driveway the trial judge added that the officer was on the driveway in accordance with an implied invitation.
[25] The appellant submits that the trial judge erred in concluding that Cst. Chow was lawfully on his driveway pursuant to an implied invitation. He relies upon R. v. Curic, [1999] O.J. No. 5786 (C.J.), R. v. Kaltsidis, [2007] O.J. No. 1400 (S.C.J.) and R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1.
[26] In Evans, at para. 13, Sopinka J., for the majority, held that “the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock.” However, in Evans the court concluded that the police in that case had a clear “subsidiary purpose” of approaching the door of Evans’ home to see if they could smell marijuana inside the house once the door was opened. The majority held that in these circumstances the police were engaged in a search and that they had therefore exceeded the terms of the implied licence and were trespassers on the property.
[27] In Curic, a citizen had observed Curic driving in an erratic manner and reported it to the police. The police arrived at Curic’s residence after Curic had left his vehicle and proceeded to the front step of his home. The officer ran up to the step and took Curic by the arm. At that point the officer observed signs of impairment and arrested Curic. At a trial in the Ontario Court of Justice, Wake J. held that in these circumstances the police officer had exceeded the bounds of the implied waiver because he had approached Curic’s door for the purpose of securing evidence and was therefore engaged in a search of the home.
[28] In Kaltsidis, Tulloch J., (as he then was), sitting as a summary conviction appeal judge, upheld a decision by Forsyth J., who took a similar approach to that taken in Curic after finding that the police had entered a carport attached to a private dwelling in order to confront an accused and develop grounds for an arrest. Again, it was a situation where the police had a “tip” from a citizen about a potential impaired driver.
[29] I pause to observe that in Curic the trial judge found as a fact that the officer did not see the accused driving. He arrived after the accused had already made it to his front door step. In Kaltsidis the trial judge found that the officer had only a stale tip at best when he entered the carport attached to the accused’s house. That finding was not upset on appeal. In the present case the trial judge found as a fact that Cst. Chow saw the appellant driving and saw him stumble out of his car and have difficulty closing the car door. The evidence established that the officer approached the appellant before he had proceeded very far up his driveway. I also note that there is no evidence that the appellant ever asked the police officer to leave his property.
[30] In these circumstances I am unable to accept the appellant’s submission that Cst. Chow exceeded the terms of the implied invitation to approach the appellant outside his home to speak to him. I am supported in my conclusion by the decisions of the Court of Appeal for Ontario in R. v. Lotozky (2006), 2006 21041 (ON CA), 81 O.R. (3d) 335, 210 C.C.C. (3d) 509 and R. v. Desrochers, 2008 ONCA 255.
[31] In Lotozky, on facts very similar to those in the current case, the Court of Appeal held that the trial judge had erred in applying the decision of Wake J. in Curic, and that the summary conviction appeal judge had erred in concluding on the basis of Evans that the police had exceeded the implied invitation because they were involved in a search when they entered the private driveway.
[32] Rosenberg J.A., writing for the court, held at para. 18 that, “merely walking onto a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search.” At para. 19 Justice Rosenberg added that asking a motorist routine questions related to his or her licence, ownership and insurance would not normally be considered sufficiently intrusive questions to impinge on a reasonable expectation of privacy. He subsequently concluded that the police were lawfully on the driveway pursuant to the implied invitation when they questioned the respondent. At paras. 35 and 36 Rosenberg J.A. said the following:
The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motor vehicle, does not in my view exceed the bounds of the implied invitation, provided the officer had a legitimate basis for entering on the driveway…
The officers in this case had a legitimate basis for entering on the driveway. They had received a report that the driver of the car associated with the address was apparently impaired. The driver drove the vehicle in an unusual fashion as it approached the driveway.
[33] I conclude that the facts found by the trial judge in this case and those before the Court of Appeal in Lotozky are virtually identical. Applying Lotozky to the facts found by the trial judge, this ground of appeal must be dismissed.
[34] Desrochers is another decision of the Court of Appeal to the same effect. In that case the trial judge had found that a police officer had gone to the appellant’s door to speak to him about an accident he had been involved in. The court distinguished such a situation from one in which police attend a door “under a pretext and with the intention of conducting an unlawful search.” The court held that the implied invitation applied and found the police conduct in approaching the door to be lawful.
[35] During argument I raised with counsel whether the entry onto the driveway in this case could be justified on the basis of the Waterfield test. Neither counsel was prepared to make submissions on that point. Having regard to the manner in which the appeal was argued, it is unnecessary to decide this question.
Did the Trial Judge Err in Concluding that the Breath Tests Were Administered as Soon as Practicable?
[36] This ground of appeal can be shortly dealt with. The time that elapsed between the breath demand and the first breath test was 58 minutes. The second test was administered 23 minutes later.
[37] All of the intervening time is adequately explained. As the trial judge noted in his reasons, the accused was arrested at 11:08 p.m. He was read his rights at 11:10 and was given a caution and a breath demand at 11:13. The officer then arranged for a tow truck and for a second officer to assist with the tow. The officer left the scene with the appellant at 11:18 and arrived at the police station at 11:29 by means of a direct route. At 11:30 Cst. Chow contacted duty counsel. At 11:42 duty counsel called back. Although the trial judge mentioned that the conversation with duty counsel took two minutes, there was some evidence that it took up to four minutes. At 11:51 p.m. the appellant was turned over to the qualified breath technician who had to attend to certain well-known preliminaries with the Intoxilyzer machine and the appellant. There is an audio-video recording of what occurred after the appellant was turned over to the technician.
[38] At trial there was a dispute about whether the appellant wished to speak to duty counsel. When he was originally given his rights to counsel the appellant said he did not wish to speak to a lawyer. However, Cst. Chow testified that upon arrival at the police station she asked the appellant whether he wished to speak to duty counsel. She testified that the appellant said he did and she arranged it. The call to duty counsel, the call back and the conversation with duty counsel all occurred within a reasonably prompt time.
[39] Defence counsel at trial challenged Cst. Chow on her testimony that the appellant wished to speak to duty counsel. However, the appellant testified only on the Charter voir dire and not on the trial proper. Cst. Chow’s testimony on this point stood uncontradicted. It is apparent from the trial judge’s reasons that he accepted Cst. Chow’s evidence that the appellant asked to speak to duty counsel.
[40] The requirement that samples of breath be taken as soon as practicable in order that the Crown may have the benefit of the presumption of identity in s. 258(1)(c) of the Criminal Code, that the concentration of alcohol in the blood of an accused is the same at the time of driving as at the time of the tests, does not mean that the tests must be administered as soon as possible. The tests must be administered within a reasonably prompt time having regard to all of the circumstances: R. v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.). The focus is upon whether the police acted reasonably and the Crown is not required to explain every minute of delay between the demand and the test: R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, at paras. 13-15; R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.).
[41] Applying these authorities to the facts found by the trial judge I conclude there was no error by the trial judge. This ground of appeal fails.
The Arbitrary Detention and Stay of Proceedings Issue
[42] The appellant completed his second breath test at 12:29 a.m. on May 20, 2012. He was not released from custody until 7:27 a.m. the following morning. It was an agreed fact that there were a number of responsible adults who were available to pick the appellant up from the police station and supervise him.
[43] Although the appellant filed a Notice of Application prior to trial indicating that he would allege his detention following the completion of his second breath test was arbitrary, the Crown did not call the staff sergeant in charge of the police station to explain why the appellant was not released from custody. Cst. Chow testified that it was up to the staff sergeant to decide whether the appellant would be released.
[44] It is common ground that the question of whether the appellant should have been released from custody, and when, fell to be determined under s. 498 of the Criminal Code. Section 498(1) provides that when an accused is arrested without warrant for an offence such as the offences in question here, “the officer in charge, or another peace officer”, shall release the accused “as soon as practicable” on a promise to appear or one of the other methods of release specified in the subsection. Section 498(1.1), however, provides that the officer in charge shall not release an accused under ss. (1) if he or she “believes, on reasonable grounds” that detention “is necessary in the public interest” or where release from custody should be dealt with under some other provision of the Criminal Code. These determinations are to be made “having regard to all the circumstances” including the need to identify the accused, secure or preserve evidence, to prevent the continuation or repetition of the offence or the commission of another offence, to protect victims or witnesses, or to ensure the accused’s attendance in court.
[45] In the circumstances of this case, whether the appellant’s detention should have continued following the completion of the breath testing depended on whether such detention was necessary in the public interest to prevent the continuation or repetition of the offence, having regard to his level of intoxication. The difficulty the trial judge faced was that neither the Crown, despite the Notice of Application, nor the appellant, who bore the burden of establishing a s. 9 Charter violation on a balance of probabilities, called the staff sergeant to testify. Consequently, the trial judge did not have any evidence about whether the many factors that should be taken into account in making a determination under s. 498 of the Criminal Code had been evaluated. For a review of the applicable legal principles concerning arbitrary detention in circumstances such as these and a discussion of the relevant considerations by an officer in charge when making a determination whether to release someone pursuant to s. 498 of the Criminal Code, see R. v. Iseler (2004), 2004 34583 (ON CA), 190 C.C.C. (3d) 11 (Ont. C.A.); Price (previously cited) and R. v. Prentice, 2009 ONCJ 708, [2009] O.J. No. 6001(C. J.).
[46] The appellant submits that in this case the trial judge erred in concluding that there was no arbitrary detention because he had no evidence as to why the detention occurred, what criteria were used in coming to the conclusion to detain and no evidence that any alternative form of release, such as release to a responsible adult, had been explored.
[47] In his oral reasons (transcript, August 13, 2013, at p. 13) the trial judge acknowledged that he had no evidence as to why the accused was not released. The trial judge then went on to say that in his opinion he could “infer what the police officer’s reasonable and probable grounds for detaining the accused were.” He then noted that the appellant had extremely high breath readings and was obviously highly intoxicated having regard to the evidence of Cst. Chow and Cst. Pinheiro and to the audio-video recording of the appellant in the breath room. That recording confirmed that the appellant had slurred speech and had difficulty responding to simple instructions. The trial judge said he inferred that the appellant was not released due to his extreme intoxication having regard to his own safety and the safety of the public. Therefore, he held that the detention was not arbitrary.
[48] It seems to me that, while the trial judge was on the right track with his thinking, he was in error when he concluded that he could infer what a witness who was not called would have said had they been called to testify. In the absence of the witness being called we do not even know if the witness considered the matter. Perhaps the appellant’s case fell through the cracks or the staff sergeant was called away on other important duties and never made a decision. Perhaps the staff sergeant did make a decision but simply applied a formula regarding the elimination of alcohol to the concentration of alcohol in the appellant’s blood as determined by the Intoxilyzer test results. There is authority that such an approach could be viewed as arbitrary: Price; R. v. Longfield, unreported, December 28, 2007, (O.C.J.) per Campling J. With respect, I think it simply goes too far to infer what an absent witness would have said, particularly when there was no evidence that the staff sergeant had even considered the matter.
[49] As I previously mentioned, I am of the view that despite this error the trial judge was partially on the correct track with his thinking. The factors the trial judge identified were clearly relevant to whether the appellant’s continued detention was arbitrary. As the trial judge mentioned, there was considerable evidence that the appellant was very intoxicated. That evidence provided the context in which to determine, based on an assessment of all of the other relevant evidence on the issue, whether the appellant had discharged his onus of proving that his detention was arbitrary. The fact that neither side had called the staff sergeant to testify would be a relevant, but not necessarily determinative, factor in that analysis. If the trial judge had approached the issue in this way it seems to me that it would have been open to him to conclude that the appellant had failed to demonstrate on a balance of probabilities that he was arbitrarily detained. I agree with the trial judge’s common sense conclusion that the factors he identified were relevant, but with respect, I am driven to the conclusion that he erred in the manner in which he gave effect to them.
[50] I have also come to the conclusion that the fact that the trial judge might have used the factors he identified in the way I have described to reach the same result does not assist the respondent on the appeal. I cannot say that the error I have found was harmless. Nor can I say that the result would necessarily have been the same had the trial judge taken the approach I have suggested. The curative proviso in s. 686(1)(b)(iii) cannot be applied to this error.
[51] That does not end the matter, however, as the trial judge said that if he was wrong on the issue of arbitrary detention, he wanted to address the remedies of exclusion of evidence and stay of proceedings pursuant to s. 24(1) of the Charter. He found that there was no basis for granting either remedy. If he was correct then the fact that I have found he erred in determining the s. 9 issue is immaterial.
[52] The trial judge started this part of his reasons by referring to R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, for the proposition that a stay of proceedings is only appropriate in the “clearest of cases”. He then continued this part of his reasons as follows:
Here if a breach of the accused’s rights under Section 9 had occurred it would’ve been post-offence. The breach if it had occurred had nothing to do with the investigation and the gathering of evidence against the accused. It did not impact on trial fairness. There was no temporal or causal connection between the breach and the obtaining of evidence in this trial. It’s the court’s opinion that neither the exclusion of evidence or a stay of proceedings is appropriate in this case. Bearing in mind the accused’s extreme intoxication it cannot be said that the detention of the accused was made in bad faith. It in no way affected trial fairness or the accused’s right to make full answer and defence. The societal interest in having a trial on the merits of a serious charge such as impaired driving far outweighs any breach of the accused’s rights which may have occurred under Section 9, and the application is dismissed.
[53] The appellant does not challenge the trial judge’s decision not to exclude the evidence. He does challenge the trial judge’s determination that a stay of proceedings was not appropriate. In his notice of appeal and his factum the appellant seeks a stay of proceedings or a new trial, but does not seek any other remedy.
[54] The appellant submits that the trial judge erred by failing to recognize that in O’Connor the court described two categories of abuse of process that could warrant a stay of proceedings. He submits that the trial judge dealt only with the first category and failed to recognize or deal with the second, or residual, category of circumstances that could lead to a stay of proceedings. He submits that the trial judge completely failed to direct his attention to the residual category. By reference to a number of cases on post breath test detention that have come before the courts in Peel Region, the appellant submits that there is a systemic problem that needs to be addressed and that the trial judge erred in failing to grant a stay of proceedings.
[55] I am not persuaded the trial judge made the error alleged. However, even if I were persuaded that the error was made, I would conclude that on a proper analysis of all relevant factors the outcome would be the same as that reached by the trial judge.
[56] Since O’Connor it has been recognized that there are two classes of abuse of process that can lead to a stay of proceedings. In O’Connor the gap was closed between the common law doctrine of abuse of process and violations of s. 7 of the Charter. While what is alleged in this case is a s. 9 Charter violation, the misconduct alleged has certain common features to abuse of process and violations of s. 7 of the Charter as described in O’Connor and subsequent cases. For example, it is submitted that the conduct leading to the alleged s. 9 violation resulted in the appellant being treated unfairly and in an undermining of important principles relating to the release of persons charged with offences that impact aspects of the administration of justice generally.
[57] The rules with respect to when a stay of proceedings is available have largely been developed in the context of abuse of process and violations of s. 7 and in the context of violations of s. 11(b) of the Charter. As the nature of the violation of s. 9 of the Charter is a more particularized violation that might otherwise fall within s. 7, it seems to me that it is logical and appropriate to consider and apply the jurisprudence developed in relation to s. 7 Charter violations and common law abuse of process when considering the availability of a stay of proceedings as a remedy for a violation of s. 9. This now seems to be an accepted approach whenever a stay of proceedings is sought for a Charter violation other than a violation under s. 11(b). See R. v. S.B., 2014 ONCA 527.
[58] Returning to the two categories of what I will refer to as abuse of process, those two categories were initially described in O’Connor at para. 73. Recently in R. v. M.T., 2013 ONCA 476, at paras. 67-70, Rosenberg J.A. referred to R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 as providing “helpful summaries” of the doctrine of abuse of process. He then said, at para. 67:
Those cases identify two categories of abuse of process. The first, and more common, category is engaged by prosecutorial conduct affecting the fairness of the trial; the second, the residual category, is engaged by prosecutorial conduct that contravenes fundamental notions of justice and undermines the integrity of the judicial process: see Nixon at para. 36.
[59] In the very recent case of R. v. Babos, 2014 SCC 16, Moldaver J. reiterated, at paras. 30-31, that a stay of proceedings is a drastic remedy which permanently halts the prosecution, frustrates the truth finding process of the trial and deprives the public of the opportunity to see justice done on its merits. Consequently, as recognized by the trial judge in the present case, a stay will only be warranted in “the clearest of cases”.
[60] At para. 32 of Babos, Justice Moldaver emphasized that whether a stay is sought under the first category of abuse of process dealing with trial fairness or under the residual category, the test will be the same. He then restated and clarified that test as follows:
There must be 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 by its outcome” (Regan, at para. 54);
There must be no alternative remedy capable of redressing the prejudice; and
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”.
[61] At para. 41 Justice Moldaver added that when a stay is sought for cases in the residual category “balance must always be considered”. This is related to the fact that the residual category is aimed at protecting the integrity of the justice system and not at prejudice to the accused. On this point, see also R. v. Zarinchang, 2010 ONCA 286, 254 C.C.C. (3d) 133, at para. 58. To use Justice Moldaver’s words in Babos, at para. 41:
Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
[62] Significantly, many of the things described in para. 41 which are to be taken into account in the balancing process are specific to the case in question, such as the seriousness of the charge, the circumstances of the accused and society’s interest in a trial of the case in question on the merits. However, the court is also directed to consider whether the impugned state conduct is systemic in nature.
[63] Against this background of legal principles I return to the relatively brief oral reasons of the trial judge which were delivered after a two day trial and which were required to address many issues raised by the appellant. First, I note that the trial judge’s reasons were delivered before the judgment of the Supreme Court of Canada in Babos was released. Second, the trial judge was correct that he needed to apply the “clearest of cases” standard. Third, in referring to that standard he quoted, in its entirety, para. 82 of Justice L’Heureux-Dubé’s judgment in O’Connor. That paragraph indicates that the clearest of cases test is to be applied to both categories of abuse of process. Consequently, I reject the submission that the trial judge erred by ignoring the residual category. Fourth, in the passage from the trial judge’s reasons which I previously quoted he does undertake a balancing of relevant factors. Many of the factors the trial judge referred to are relevant under both categories of abuse of process.
[64] Focussing just on the residual category, I note that the trial judge mentioned the appellant’s extreme intoxication, the seriousness of the charge, the lack of bad faith and specifically considered whether society’s interest in a fair trial outweighed any breach of the appellant’s s. 9 rights.
[65] While there are other factors the trial judge could have expressly referred to, including making further reference to the prospective nature of concerns under the residual category of cases, it is clear to me that the trial judge applied the correct test and demonstrated by his reasons that he performed a balancing test taking the relevant factors into account.
[66] I also observe that the evidence the trial judge took into account when he erroneously inferred what the evidence of the officer in charge would have been had he been called, is relevant when it comes to the question of whether a stay of proceedings is an appropriate remedy in this case. The trial judge clearly had all of that evidence in mind.
[67] In my view, the trial judge was correct in concluding that this was far from the clearest of cases which would warrant a stay of proceedings. Given this conclusion, my determination that the trial judge erred in drawing inferences about what the officer in charge would say if called as a witness has no impact on the result.
[68] The appeal is dismissed.
F. Dawson J.
Released: August 8, 2014
COURT FILE NO.: SCA(P) 514/13
DATE: 20140808
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
BARRINGTON DEHANEY
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: August 8, 2014