ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 007/13
DATE: 20140219

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

Serge Hamel, Crown Counsel

• and -

MICHAEL WENHAM
Applicant

Dennis W. Fenton, Counsel for the Accused

HEARD: October 21 - 24, December 3, 2013

ellies j.

REASONS FOR DECISION

Introduction

[1] On December 3, 2013 I rendered a decision (2013 ONSC 7431) with respect to an application brought by Mr. Wenham to exclude evidence under s. 24 of the Charter. I ruled that statements he made in response to police questioning at the scene of the accident should be excluded under s. 24(1) of the Charter on the basis that they were statutorily compelled. I held that they should be excluded for all purposes, including their use as grounds upon which an approved screening device (“ASD”) demand was made. I also ruled that observations made by Const. Purdie of Mr. Wenham at the scene should not be excluded under s. 24(1).

[2] I was unable, however, to reach a decision with respect to Mr. Wenham’s further request that evidence be excluded under s. 24(2) because of violations of his rights under ss. 8, 9, and 10 of the Charter. I asked for additional written submissions. I have now received those submissions, for which I am indebted to counsel, and I have arrived at a decision with respect to that part of Mr. Wenham’s application.

Issues

[3] In his original application, Mr. Wenham sought to exclude the following evidence:

(a) any statements made by Mr. Wenham to Const. Purdie and any evidence collected by Const. Purdie prior to the administration of the ASD;

(b) the results of the ASD;

(c) any observations relating to Mr. Wenham made by Const. Purdie and by Const. Pauls after the point in time at which it is alleged Const. Purdie began an investigation into the death of Mr. Antila; and

(d) any evidence obtained from Mr. Wenham after his arrest, including the Intoxilyzer readings.

[4] My earlier ruling dealt with everything but the observations made by Const. Pauls, which were made while Mr. Wenham was in his presence for the purpose of providing samples of his breath into the Intoxilyzer.

[5] Counsel for Mr. Wenham originally argued for exclusion of the evidence obtained after Mr. Wenham’s arrest on the premise that Mr. Wenham was arrested for impaired driving when Const. Purdie had no reasonable grounds to do so. As I understand the argument, Mr. Fenton contended that Mr. Wenham was, therefore, detained arbitrarily (contrary to s. 9 of the Charter), that the evidence was obtained as a result of an unreasonable search and seizure (contrary to s. 8 of the Charter), and that Mr. Wenham’s right to be informed of the reason for his arrest and to obtain the assistance of counsel were breached when he was not informed that he had been arrested for causing the death of Mr. Antila (contrary to ss. 10(a) and (b) of the Charter). Thus, it was argued that the evidence ought to be excluded under s. 24(2) of the Charter.

[6] In his supplementary written submissions, Mr. Fenton submits that, because the grounds for the ASD demand have now been ruled inadmissible, the continued detention of Mr. Wenham after the ASD results were obtained was arbitrary. He argues that the observations of Const. Pauls ought to be excluded under s. 24(1) on the same basis as that upon which the other evidence has been ruled inadmissible under that section.

[7] Although Mr. Fenton also contends that Mr. Wenham’s rights under ss. 10(a) and (b) were breached, he submits that an analysis of whether the observation evidence should be excluded under s. 24(2) would be moot if it is excluded under s. 24(1).

[8] As I will explain, I agree that the evidence ought to be excluded, but not on the basis of arbitrary detention.

Analysis

Was Mr. Wenham detained arbitrarily?

[9] Mr. Wenham argues that his detention was arbitrary in two ways:

(a) first, that his detention for the purpose of providing a sample of his breath into the ASD was arbitrary, now that the court has excluded his responses to Const. Purdie as the basis of the ASD demand; and

(b) secondly, that his continued detention after registering a fail on the ASD was arbitrary because he was arrested for impaired driving, when Const. Purdie had no grounds to arrest for that offence.

[10] I have difficulty with both of these arguments.

[11] In my opinion, the initial detention was not arbitrary in the way in which that term has been interpreted in the jurisprudence. A detention will be arbitrary where it is capricious, despotic or unjustifiable: R. v. Cayer, 1988 9879 (ON CA), 28 O.A.C. 105. That cannot be said about the detention by Const. Purdie of Mr. Wenham for the purpose of the ASD demand. Although the evidence was later ruled inadmissible, Const. Purdie was acting at the time upon Mr. Wenham’s information that he had been operating the UTV and that he had alcohol in his body.

[12] What amounts to an arbitrary detention is a question of law, but whether a detention was arbitrary is a question of fact: R. v. Ware; R. v. Kopec; R. v. Byers (1987), 49 M.V.R. 97 (B.C. Co. Ct), referred to for other reasons in R. v. Duguay (1985), 1985 112 (ON CA), 18 C.C.C. (3d) 289 (Ont. C.A.). A subsequent ruling that the detention was unlawful does not change the factual basis upon which it was made. On the facts of this case, the detention of Mr. Wenham prior to his arrest was not arbitrary.

[13] As to the second argument advanced on Mr. Wenham’s behalf, I am unable to agree that, if I accept that Mr. Wenham was arrested for impaired driving only, Const. Purdie had no reasonable grounds to do so. There were grounds to arrest Mr. Wenham for impaired driving as a result of the fact that he registered a fail on the ASD. This was sufficient to justify his arrest for the offence of impaired operation, despite the absence of other indicia of impairment. In Cayer, the court held (at p. 113) that:

… the opinion of a police officer, arrived at either by means of a roadside screening device or by other reliable means, that a motorist's ability to operate a motor vehicle is impaired by alcohol or drugs carries with it by necessary implication the corollary that the motorist is a public menace and if permitted to continue his criminal activity will pose a threat not only to his own safety but to the safety and well-being of those unfortunate members of the public who may encounter him. The officer has a duty to prevent the continuation or repetition of the offence, recognized by s. 450(2)(d)(iii), which duty can be effectively discharged only by an arrest. To do less would not achieve this end.

[14] Thus, it cannot be said that Mr. Wenham’s arrest was arbitrary. However, that does not end the analysis. As I will explain, although the observation evidence may not have been obtained in a way that violated Mr. Wenham’s right against arbitrary detention, the use of such evidence at trial has the same potential for unfairness as the compelled evidence from which it is flowed. It is for that reason that the evidence must be excluded, in my view.

Should the evidence be excluded under s. 24(1) of the Charter?

[15] The Crown submits that s. 24(2) of the Charter generally provides the framework for the exclusion of evidence resulting from a Charter breach. That is true: R. v. Therens, 1985 29 (SCC), [1985] 1 S.C. R. 613. However, where the evidence is not obtained in a way that breaches an accused’s Charter rights, it may still be excluded under s. 24(1) where its use at trial will do so: R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, at paras. 85-89.

[16] Although the issue was not raised in White, the discoverability of evidence comes into play indirectly under s. 24(1), just as it comes into play directly under s. 24(2). With respect to evidence resulting from the compelled participation by an accused, where the evidence would have been obtained in any event without that compulsion, the evidence may be admitted at trial because the right against self-incrimination is not violated where it is obtained without the accused’s forced participation. The decision of the Ontario Court of Appeal in R. v. Milne (1996), 1996 508 (ON CA), 107 C.C.C. (3d) 118, to which I referred in my earlier decision, provides a good example of what I mean.

[17] The court in Milne held that observations of an accused made by a police officer acting under s. 48 of the Highway Traffic Act were admissible at trial, even though the results of roadside screening tests were not. In my earlier decision, I quoted Moldaver, J.A. (as he then was), who wrote in Milne (at para. 40):

I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. (Emphasis added.)

[18] Milne involved an application under s. 24(2) on the basis that the accused’s rights under ss. 7, 8 and 10(b) had been breached and was decided before White. However, it is relevant to the analysis under s. 24(1), in my opinion. From this excerpt, it is clear that the rationale behind the court’s decision to admit the observations in Milne was the fact that those observations were not made solely as a result of the compelled participation by the accused in the roadside tests but, rather, as a result of the police officer carrying out the authorized stop. In other words, the evidence would have been discovered in any event. This was the basis for my ruling relating to the observations made by Const. Purdie at the scene. It was also the basis for Gauthier J.’s decision in R. v. Germain, 2012 ONSC 3928, to which I also made reference in my earlier decision.

[19] In the present case, however, the observations made by Const. Pauls while obtaining the Intoxilyzer samples were made only as a result of the demand made by Const. Purdie. Unlike Const. Purdie, who was responding to the 911 call, Const. Pauls was not carrying out any other authorized duties at the time he made his observations of Mr. Wenham. Const. Pauls’ sole purpose was to take the breath samples, the demand for which was based on Mr. Wenham’s compelled statements.

[20] There is no evidence that Const. Pauls would have had any opportunity to make the observations he did but for the fact that Mr. Wenham failed the ASD. According to the evidence of Const. Purdie, the failed ASD is the only basis upon which Mr. Wenham was arrested and the Intoxilyzer demand was made, and the ASD demand was made only because of the information that Mr. Wenham was compelled to provide.

[21] In my opinion, the same rationale that underlay the decision to exclude the statements in White requires the exclusion of the observations made by Const. Pauls. To admit the observations of Const. Pauls at trial as evidence of Mr. Wenham’s guilt would be to allow the Crown to use compelled evidence indirectly to prove his guilt; something that the decisions in White and R. v. Soules, 2011 ONCA 429 say ought not to be permitted.

[22] Alternatively, I would exclude the evidence on the basis of my power to do so at common law: White, at para. 89. In my opinion, to admit the observation evidence would be unfair because the opportunity to obtain it arose solely through the use of Mr. Wenham’s compelled statements.

Conclusion

[23] For these reasons, the evidence of observations made by Const. Pauls of Mr. Wenham following the breath demand made by Const. Purdie is excluded.

Ellies J.

Released: 20140219

COURT FILE NO.: 007/13
DATE: 20140219

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

MICHAEL WENHAM
Applicant

REASONS FOR DECISION

Ellies J.

Released: 20140219