ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
Phillip Andre Deseck
Appellant
- and -
Her Majesty the Queen
Respondent
Phillip Millar, for the appellant
A. Avery, for the respondent
HEARD: February 26, 2015
B.W. Miller J.
[1] This is an appeal from a conviction under s. 253(1)(b) of the Criminal Code from the Honourable Justice McFadyen on May 24, 2014. The Appellant, Mr. Phillip Deseck, appeals on the basis that the trial judge made errors of fact and law in finding that Mr. Deseck was not subjected to arbitrary detention and illegal search and that his rights under ss. 8 and 9 of the Charter of Rights and Freedoms were not violated.
[2] The trial judge did not err in either respect, and the appeal is dismissed for reasons that are set out below.
Overview
[3] The appellant was charged with operating a motor vehicle while impaired under s. 253(1)(b) of the Criminal Code. On arrest, he provided a breath sample that confirmed that the concentration of alcohol in his blood exceeded 80 mg of alcohol in 100 ml of blood. The sole legal issues are whether his detention and arrest infringed his s. 8 and s. 9 rights under the Charter, and whether the evidence should therefore be excluded under s. 24(2) of the Charter.
Standard of Review
[4] The Superior Court of Justice has broad jurisdiction to hear appeals in summary conviction matters. ‘A Superior Court judge sitting on appeal in summary conviction proceedings can conduct a thorough review of all aspects of the trial.’ R. v. R.R., 2008 ONCA 497, para. 22.
Reasons for Judgment and Evidence at Trial
[5] The essential facts are these. On December 22, 2011, Constable Wondergem of the OPP Grand Bend detachment attended at a residence and former hotel/bar called Duffy’s Cove on Highway 21. His purpose was to locate Chris Plagianos. The trial judge, following the submissions of the Crown at trial, unfortunately refers to Mr. Plagianos throughout as ‘an alleged suspended driver by the name of Chris Plagianos’.[^1] The evidence is indeed that Mr. Plagianos’s driver’s licence was under suspension. However, it is not the sole reason (and likely not the primary reason) why Constable Wondergem was looking for Mr. Plagianos at Duffy’s Cove.
[6] The uncontradicted evidence of Constable Wondergem was this:
… my purpose for being there, I was looking for a male party who I know to be a suspended driver and he’s also not supposed to be on the property.[^2]
[7] In cross-examination, Constable Wondergem repeats, ‘I was looking for Mr. Plagianos who wasn’t supposed to be on the property.’[^3] We are not told directly why he is not supposed to be on the property. The likely answer emerges in cross-examination, when Constable Wondergem states that he had charged Mr. Plagianos with trespassing under the Trespass to Property Act, although he could not recall whether this occurred before or after the day when he arrested the appellant.[^4]
[8] It was disputed how well Constable Wondergem could identify Mr. Plagianos by appearance. Constable Wondergem testified, and the trial judge accepted, that he had information that Mr. Plagianos drove a van. Constable Wondergem also testified, and the trial judge accepted, that he had encountered Mr. Plagianos on at least two occasions, one of which was at night and one of which may have been subsequent to the arrest of the appellant. The trial judge found, supported by Constable Wondergem’s evidence, that Constable Wondergem ‘did not have an accurate description of Mr. Plagianos other than he was a male in his 40s or 50s and was pudgy or heavier set.’[^5]
[9] On arriving at Duffy’s Cove, Constable Wondergem attended at the residential unit where he expected to find Mr. Plagianos. No one answered the door. He returned to his police cruiser. He began reversing his cruiser and saw a van turning off the highway on to the driveway on which he was parked.
[10] Believing that the driver might be Mr. Plagianos, Constable Wondergem executed a three-point turn so that his vehicle was now facing the highway. The van approached slowly and Constable Wondergem motioned with his arm for the driver to stop. The driver did not stop but carried on slowly down the driveway.
[11] Constable Wondergem looked at the driver as he passed but ‘could not make an identification’. On the appellant`s interpretation, this phrase is taken to mean that Constable Wondergem could not positively identify the driver as Mr. Plagianos, because he knew the driver not to be Mr. Plagianos. The trial judge’s finding, however, consistent with her finding that Constable Wondergem did not have an accurate description of Mr. Plagianos, was that Constable Wondergem ‘was unable to identify the driver’. There is nothing in the record to support the suggestion that Constable Wondergem knew at this point that the driver was not Mr. Plagianos.
[12] In any event, even if Constable Wondergem had known the driver not to be Mr. Plagianos, he nevertheless had a reason to stop and question the driver: to ascertain why the driver (whether Plagianos or not) had not stopped when directed to do so.
[13] Constable Wondergem executed a three-point turn and pursued the van, lights flashing. The driver, who was the appellant, pulled over. Constable Wondergem exited the cruiser and approached the driver’s door. At this point he did not know the identity of the driver.
[14] As he looked at the driver, he detected a strong odor of alcohol. He noticed bloodshot eyes. He asked the driver for identification, vehicle registration, and insurance. The appellant slurred his speech and had difficulty in executing the physical task of retrieving documents from his wallet. The documents identified the driver as the Mr. Phillip Deseck, the appellant
[15] Constable Wondergem asked the appellant to step outside the vehicle. The appellant swayed from side to side and was unsteady on his feet. He stated to Constable Wondergem that he had probably had too much to drink. Constable Wondergem concluded that he had reasonable grounds for believing that the appellant’s ability to operate a motor vehicle was impaired by alcohol, and he arrested the appellant. The appellant was taken to the police station where the Breathalyzer test is administered, resulting in readings of 185 mg of alcohol in 100 ml of blood.
The Appellant’s argument
[16] The appellant’s argument is that (1) the detention and arrest of the appellant were arbitrary and contrary to s. 9 of the Charter, and (2) that the demand for a breath sample was contrary to s. 8 of the Charter.
[17] On the appellant’s reading of the facts, unfortunately encouraged by submissions of the Crown at trial, Constable Wondergam attended at Duffy’s Cove, looking for a ‘suspended driver’ by the name of Chris Plagianos.
[18] It is not an offence to have a suspended license, although it is an offence to drive with a suspended licence. The appellant argues there is ‘no indication that Constable Wondergem was investigating an offence’, and that because there was no offence to investigate, Constable Wondergem was not authorized to detain anyone either under the Highway Traffic Act or the common law. All Constable Wondergem was doing, according to the appellant, was trying to locate a suspended driver.
[19] Constable Wondergem, on this theory, arbitrarily flagged down a van in the bare hope that the driver might be Mr. Plagianos, and then, knowing the driver not to be Mr. Plagianos, nevertheless pursued and detained the driver. It is submitted that this was arbitrary and contrary to s.9 of the Charter.
Section 9
[20] The problem with the appellant’s s. 9 argument is that it depends on a factual substratum that is contrary to the findings of the trial judge, amply supported by the record. This Charter argument can therefore not be sustained.
[21] The detention was not arbitrary, but reasoned. Constable Wondergem was looking for Mr. Plagianos at Duffy’s Cove. Why? Because he had information that Mr. Plagianos would be at Duffy’s Cove and that he would thereby committing a trespass and would likely have committed a Highway Traffic Act violation. Constable Wondergem was thus investigating two offences related to Mr. Plagianos.
[22] A van drove off the highway and onto a private driveway towards the premises at Duffy’s Cove. Constable Wondergem did not know whether the driver of the vehicle was Mr. Plagianos, but he had some good reasons to believe that it might be him. There was very little traffic about. It was December, when there is little traffic in Grand Bend in general, and the former restaurant and bar at the premises were closed. Anyone driving to the premises would be likely to be a resident or visiting a resident. Very few people would have reason to drive onto the premises. Fewer still would be driving a van. If the driver was Mr. Plagianos, he would be in the act of committing two offences: trespass and driving with a suspended licence.
[23] Constable Wondergem positioned himself to observe the driver and waved at him to stop. The driver did not stop. As the driver continued past him, Constable Wondergem looked at the driver and could not tell whether it was Mr. Plagianos or not.
[24] In order to lawfully detain a driver the police must have reasonable grounds. According to R. v. Simpson, ‘reasonable grounds to detain required a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.’[^6]
[25] The constellation of objectively discernible facts here is that the police were investigating a particular offence carried out by a particular individual at a particular address, and they had information that the individual they were expecting would be driving a van. Over the course of the investigation a van pulled onto the private driveway leading to the premises, where comparatively few vehicles would be expected. Constable Wondergem thus had reason to believe that the driver of the van was Mr. Plagianos and that the driver was committing both a trespass and a Highway Traffic Act violation. Additionally, a further ground to detain – unrelated to whether the driver was Mr. Plagianos – had now arisen; the driver failed to stop when flagged down by Constable Wondergem.
[26] Constable Wondergem thus had reasonable grounds to believe that a trespass was occurring, and that an offence under the Highway Traffic Act had just occurred. He was therefore authorized under common law police powers to detain the driver of the van (who turned out to be the appellant) for questioning. The nexus between (1) the offence investigated and (2) the vehicle, its driver, and the specific location entails that this was not a random or arbitrary stop as suggested by the appellant, tantamount to stopping ‘any van simply because it was operating on a highway’; Constable Wondergem had articulable cause to detain as that concept is set out in R. v. Simpson and there is no s. 9 violation in the detention. See also R. v. Mulligan,[^7] where no s. 9 violation was found in circumstances where a constable questioned the driver of a parked vehicle on the reasonable suspicion that a break-in was in progress, and determined that although there was no break-in, the driver was impaired.
[27] The detention and questioning of the appellant was therefore lawful.
[28] Similarly, the appellant’s arrest for the impaired operation of a motor vehicle was lawful and not arbitrary. For a lawful arrest for impaired operation of a motor vehicle, Constable Wondergem must have had reasonable and probable grounds for that offence, and not merely a reasonable suspicion that the appellant had consumed alcohol. The appellant argues that the arrest was precipitous and that the police ought to have administered a roadside screening test instead, pointing to R. v. Noonan.[^8] In that case, ‘there was no stumbling or staggering, no slurred speech, and no fumbling of documents’ (para. 12), and the trial judge concluded that while there was reasonable grounds for a level of suspicion that would support a demand for a roadside sample, there was insufficient grounds for arrest.
[29] The facts here are different, yielding the conclusion that there were reasonable grounds to believe that the accused was committing an offence.
[30] The objective grounds for the reasonableness of the belief are:
the appellant did not stop the vehicle when waved down by Constable Wondergem;
Constable Wondergem detected a strong odor of alcohol on the breath of the appellant;
the appellant had bloodshot eyes;
the appellant slurred his speech;
the appellant fumbled through his wallet using slow, deliberate movements;
the appellant was observed to be unsteady on his feet and swayed from side to side; and
the appellant stated to Constable Wondergem ‘I probably drank too much.’
Section 8
[31] The appellant’s s. 8 argument is entirely premised on the finding of an arbitrary detention. Given that the initial detention and subsequent arrest were reasonable, there can be no issue that a demand for a breath sample as an incident of the arrest is also reasonable.
Section 24(2)
[32] If I erred in these findings, I would not exclude the evidence pursuant to s. 24(2) of the Charter, for the reasons given by the trial judge.
Conclusion
[33] The appeal is dismissed.
“Justice B. W. Miller”
B.W. Miller J.
Released: March 13, 2015
COURT FILE NO.: 1711-998-12-0033
DATE: March 13, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Phillip Andre Deseck
- and –
Her Majesty the Queen
REASONS FOR JUDGMENT
B. W. Miller J.
Released: March 13, 2015
[^1]: Reasons for Judgement, p.2, 8-11.
[^2]: Proceedings at Trial, Vol I, p. 3, line 27-29 (emphasis added).
[^3]: Proceedings at Trial, Vol III, p. 10, line 9-11.
[^4]: Proceedings at Trial, Vol I, p. 15, line 14-23
[^5]: Reeasons for Judgment, p. 2, lines 17-19.
[^6]: (1993) 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, para. 61
[^7]: (2000) 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont. C.A.)
[^8]: 1998 CarswellOnt 2592 (O.C.J.)