R. v. Blonde, 2015 ONSC 2113
CITATION: R. v. Blonde, 2015 ONSC 2113
COURT FILE NO.: 14-304469
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JORDAN BLONDE
and
ERIN CAVAN
Applicants
Daniel Guttman and Emtiaz Bala, for the Crown/Respondent
Michael Edelson, for the Applicant, Jordan Blonde
Mark Wallace, for the Applicant, Erin Cavan
HEARD: February 2, 2015
REASONS FOR JUDGMENT
Justice Patrick smith
OVERVIEW
[1] The Applicants are applying for an order of certiorari to quash summonses that require their attendance in Mississauga for the purpose of being fingerprinted pursuant to the Identification of Criminals Act, R.S.C., 1985, c. I-1 (ICA).
FACTS
[2] The Applicants, Constable Jordan Blonde and Constable Erin Cavan are both police officers employed by the Ottawa Police Service (OPS).
[3] On May 1, 2014, the Applicants had an interaction with Ismael Awaleh that resulted in the Special Investigations Unit (SIU) commencing an investigation against them.
[4] On November 1, 2014, SIU Director Antonio Loparco caused an information to be laid against both Applicants for the charge of assault. That same day, Justice of the Peace Burton issued summonses to compel the Applicants to be fingerprinted in Mississauga on December 12, 2014, at 10:00 a.m. and to appear in court in Ottawa on December 16, 2014.
[5] Cst. Cavan was served with her summons on November 3, 2013, and Cst. Blonde was served with his summons on November 17, 2014.
[6] On November 27, 2014, the Applicants filed a notice of their intention to bring a certiorari application. On December 16, 2014, prior to the hearing of the Application, the Crown elected to proceed to prosecute the accused by way of summary conviction.
ISSUES
[7] There are three issues before the Court:
• Should the Court quash the summonses as a result of the Crown’s election since the taking of the Applicants’ fingerprints is no longer mandated by the ICA?
• Did the Justice of the Peace exceed her jurisdiction on the basis that requiring the Applicants to travel to Mississauga is a denial of procedural fairness?
• Do the summonses constitute an unreasonable search or seizure and thus violate the Applicants’ s. 8 rights under the Canadian Charter of Rights and Freedoms (the Charter)?
THE EVIDENCE
Gary Babstock
[8] The Applicants submitted an affidavit sworn by Gary Babstock, a retired member of the OPS and current Labour Relations Officer for the Ottawa Police Association, the association to which the Applicants belong.
[9] In his affidavit, Mr. Babstock states that this is the first case of which he is aware in which an officer with the OPS would be compelled to travel to Mississauga to be fingerprinted. He stated that, while he is aware of other cases (all of which date back to 2011 or earlier) in which summonses to be fingerprinted in Mississauga have been issued, in those cases arrangements were made to have the officers fingerprinted in Ottawa.
[10] Mr. Babstock further states that the Ontario Provincial Police (OPP) detachment in Kanata has indicated that they are prepared to fingerprint persons for the SIU and are also prepared to provide facilities for the SIU to take fingerprints at their premises in Kanata.
Antonio Loparco
[11] The Respondent filed an affidavit sworn by the SIU Director, Antonio Loparco.
[12] In his affidavit Director Loparco states that, prior to November 2011, officers would be issued a summons that, on its face, required fingerprinting at SIU headquarters, but arrangements would be made for the fingerprinting to be done in the home jurisdiction of the officer. After November 2011, the SIU changed its practice and required police officers charged with a criminal offence while on duty to attend at SIU headquarters in Mississauga to be fingerprinted.
[13] Director Loparco cites two reasons for this change: (1) to ensure operational readiness and (2) to safeguard public confidence in the independence of the SIU’s investigations.
[14] According to Director Loparco, the new practice ensures operational readiness by preserving the SIU’s limited personnel resources. In his affidavit he informs that the SIU has eight forensic officers and that the presence of at least one investigator is needed in most investigations and, further, that 23% of investigations require more than one forensic investigator.
[15] In his affidavit Director Loparco explains that forensic officers are required to respond immediately to incidents throughout the province and that the SIU commenced 372 investigations in the 2012-2013 Fiscal Year.
[16] Director Loparco further states that requiring forensic officers to travel to other jurisdictions within the province for fingerprinting diminishes SIU response times and adversely affects the integrity of its investigations.
[17] It is Director Loparco’s evidence that this new practice also ensures and enhances public confidence in the administration of justice.
[18] In his affidavit the Director states that the SIU was created in response to a crisis in public confidence in police investigations following fatal police shootings in the 1980s. At paragraph 27 he states that the SIU was instituted as “an independent and transparent investigative body for the purpose of maintaining public confidence in the police and justice system as a whole”. His opinion is that all investigations must be and appear to be transparent in order to ensure public confidence in investigations and that public confidence would be jeopardized if the SIU were to (1) have the OPP conduct its fingerprinting, or (2) put its operational readiness at risk for the convenience of police officers under investigation.
[19] Lastly, Director Loparco’s evidence is that the Applicants will be compensated for their time and travel expenses, and that there would be no operational impact on the OPS as a result of the Applicants travelling to Mississauga
ANALYSIS
Given the Crown’s election to proceed summarily, should the Court quash the summonses since the taking of the Applicants’ fingerprints is no longer mandated by the ICA?
[20] Section 2(1)(a)(ii) of the ICA allows for the fingerprinting of any person who is in lawful custody charged with or convicted of an indictable offence. Section 266 of the Criminal Code defines assault as a hybrid offence. Section 34(1)(a) of the Interpretation Act, RSC 1985, c I-21, deems a hybrid offence to be an indictable offence.
Applicants’ Position
[21] The Applicants argue that while s. 34(1)(a) of the Interpretation Act creates a presumption that a hybrid offence is indictable, once the Crown elects to proceed by way of summary conviction, the presumption is displaced. Accordingly, they argue that once the Crown elected to proceed by way of summary conviction, the ICA no longer authorized the taking of the Applicants’ fingerprints, and this Court must quash the summonses.
[22] Counsel for the Applicants could not identify any case law supporting their contention that a reviewing judge on a certiorari application can consider events occurring after the decision was made. Nevertheless, they argue that the summonses are prospective orders and because they contemplate a continuing series of events that occurred after the decision being reviewed they may be considered by the reviewing Court.
Respondent’s Position
[23] Counsel for the Respondent submit that the issue of whether a hybrid offence always retains its underlying character as an indictable offence, which remains undecided in the case law, is irrelevant here, because the Crown made its election after Justice of the Peace Burton issued the summonses. The Respondent argues that, on an application for certiorari, the Court is only permitted to look at the record of the proceedings and not to events that occurred subsequent to the decision.
[24] In addition, the Respondent submits that the summonses were to be complied with at a time when the offence was deemed to be indictable (i.e., before the Crown’s election); thus, even if a reviewing judge could consider events leading up to the date the summonses were to be complied with, it would make no difference as the summonses would still have been valid under the ICA. Moreover, the Respondent submits that the Crown’s election does not operate retroactively so as to deprive the court of jurisdiction in issuing the summonses.
Conclusion
[25] The Applicants relied on the Ontario Court of Appeal decision in R. v. Abarca (1980), 1980 2958 (ON CA), 57 C.C.C. (2d) 410 (Ont. C.A.), where the court stated at para. 9, that “[o]nce the Crown elects to proceed by way of summary conviction, it cannot compel the appearance of the Crown for fingerprinting.” The Applicants also relied upon R. v. Ellerbeck (1981), 1981 3263 (ON CA), 61 C.C.C. (2d) 573 (Ont. C.A.), and R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570, in support of the principle that a hybrid offence loses its indictable character once the Crown elects to proceed summarily. I agree that this is the law in Ontario and that this principle would impact the ability of the Respondent to enforce the summonses.
[26] However, the Respondent is not seeking to enforce the summonses. Rather, the question here is whether the Justice of the Peace exceeded her jurisdiction in issuing the summonses.
[27] I accept the argument of the Respondents that I cannot consider events that occurred after the Justice of the Peace’s decision to issue the summonses. The issue of jurisdiction is very different than the issue of enforceability. While events that occurred after the issuance of the summonses may affect their enforceability, an after the fact event such as the decision of the Crown to proceed summarily cannot be considered by a reviewing court to determine whether the Justice of the Peace may have exceeded her jurisdiction. The limited nature of a certiorari review was described as follows by the Supreme Court of Canada in R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 [Russell] at paras. 19-20:
The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term 'jurisdiction' being given its narrow or technical sense": R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93 (S.C.C.), at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction": Skogman, supra, at p. 100 (citing R. v. Forsythe, 1980 15 (SCC), [1980] 2 S.C.R. 268 (S.C.C.)).
[28] In deciding whether the Justice of the Peace exceeded her jurisdiction, I am constrained to look only to the record of those proceedings—in other words, to the material and evidence that the Justice of the Peace had before her when she made her decision. My judicial review is limited to what is contained in that record and nothing more. This is clear from the nature of the remedy, as described by E. G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2d ed, loose-leaf (consulted on March 4, 2015) (Toronto: Canada Law Book, 1988) at 26-19:
Certiorari is the means whereby a superior court receiving a complaint of an injustice done to the applicant by an inferior court wishes to be informed (certiorari) and therefore orders that the record of proceedings be transmitted to it by the inferior court for examination for jurisdictional defects, which, if found may result in the quashing of the impugned proceedings. [emphasis added]
[29] Although the issue of enforcement of the summonses was not argued and was conceded to be moot, the Crown’s election to proceed summarily does not operate retroactively so as to invalidate the issuance of summonses. This type of argument was rejected in Minot v. Canada (Attorney General), 2011 NLCA 7, 304 Nfld. & P.E.I.R. 212 [Minot] at para. 43, and R. v. Gamble, 2010 SKPC 171, 368 Sask. R. 76 [Gamble], affirmed 2014 SKCA 101, at para. 21.
[30] In Minot, the accused was charged with a hybrid offence under the Aeronautics Act, which he was alleged to have committed while on an in-flight, Canadian aircraft. Section 7(1) of the Criminal Code is a deeming provision that provides that if, while on an in-flight Canadian aircraft, a person commits an act that would be an indictable offence if committed in Canada, then that person is deemed to have committed the act in Canada. On appeal, the accused argued that the court was without jurisdiction, because the Crown opted to proceed summarily and thus his actions were no longer caught by s. 7(1) of the Criminal Code. The Newfoundland Court of Appeal held as follows at para. 19:
The reasoning in both Dudley and Belair makes the Crown’s election to proceed summarily on the Aeronatics Act charge against Mr. Minot of no consequence to the court’s jurisdiction. Jurisdiction is grounded by the offence’s hybrid nature, which makes it an offence punishable by indictment. It therefore is a charge captured by section 7 of the Code. Consequently, jurisdiction over the section 7.41(1) Aeronautics Act charge against Mr. Minot was not lost by the Crown’s election to proceed summarily.
[31] In Gamble, the accused was photographed pursuant to s. 2 of the ICA after being charged with a hybrid offence. The Crown subsequently elected to proceed by summary conviction. The accused ultimately plead guilty. The accused was then charged, following a separate incident, with sexual assault causing bodily harm. He argued that the photographs taken as a result of the previous charge could not be considered by the Court because the Crown’s election to proceed summarily with respect to that charge applied retrospectively to essentially invalidate the taking of the photographs. The Saskatchewan Provincial Court rejected this argument at para. 21:
On the date that the photograph in question was taken, an information had been sworn; therefore, Mr. Gamble was "charged" with an indictable offence and any photographs or fingerprints were lawfully taken pursuant to the Act. The subsequent conviction for a summary offence does not alter the legitimacy of the police obtaining or possessing that information. The purpose of the Act is to permit the creation of a record of the identity of those offenders charged or convicted of an indictable offence, not only those convicted. [emphasis in original]
[31] It is my finding that the Crown’s election to proceed summarily does not apply retrospectively to invalidate the issuance of the summonses. Further, I find that the Justice of the Peace did not exceed her jurisdiction when issuing the summonses in question.
Did the Justice of the Peace exceed her jurisdiction by requiring the Applicants to travel to Mississauga in breach of the principles of procedural fairness?
The Applicants’ Position
[32] The Applicants submit that procedural fairness requires that the fingerprinting occur in Ottawa for three reasons: (1) distance, (2) the availability of adequate alternatives and (3) discrimination.
[33] The Applicants argue that issuance of the summonses violates their right to procedural fairness and thereby exceeded the jurisdiction of the Justice of the Peace. Specifically, the Applicants maintain that procedural fairness was violated because they are being treated differently and in an unreasonable manner compared to all other accused persons in the province who are customarily fingerprinted in the same region as their charges and court proceedings take place. The Applicants provided evidence that, in Ottawa in 2014, of all accused persons charged with an indictable offence and required to attend for fingerprinting, they are the only two required to travel to Mississauga.
[34] In his affidavit Mr. Babstock states that there are alternatives that would not require the Applicants to travel over 900 kilometers roundtrip to be fingerprinted. Given the availability of these alternatives, the Applicants argue that the summonses are unreasonable and a denial of the principles of natural justice.
[35] With respect to the issue of public confidence the Applicants argue that allowing fingerprinting to take place in the officer’s home region would not threaten public confidence in the SIU, because the investigation is over at the point fingerprints are taken; charges have been laid, and these factors are sufficient to ensure public confidence in the SIU’s independence and investigative processes.
[36] Further, the Applicants argue that fingerprints are impervious to bias—the results will be the same no matter who takes them.
[37] Lastly, they submit that the Respondent presented no evidence to support the assertion that public perception will be impacted by having the OPP take fingerprints for the SIU.
[38] With respect to the issue of operational readiness, the Applicants assert that requiring an SIU investigator to travel to Ottawa for the purpose of fingerprinting does not jeopardize the SIU’s operational readiness.
[39] Firstly, they state that the OPP in Kanata are prepared to take the fingerprints for the SIU, eliminating the need to send an SIU investigator.
[40] Secondly, the Applicants referred to the 2012-13 annual reports of the SIU which indicate that only 14 investigations led to charges in Ontario that year. Statistically, this translates to one SIU forensic officer being needed in the East Region to take fingerprints approximately twice a year.
[41] The Applicants maintain that in the last three years, the SIU were not required to travel to Ottawa to take fingerprints for any case, which demonstrates that the assertion that to do so could constitute an operational threat is purely hypothetical and speculative. Further, they state that their position is supported by the Respondent’s inability to point to any specific investigation that was jeopardized by the unavailability of a forensic officer who was not available because he/she was otherwise occupied travelling to fingerprint an officer charged with an offence.
Respondent’s Position
[42] The Respondent’s argue that, to obtain certiorari in this case, the Applicants must establish: (1) an apparent denial of procedural fairness, and (2) the discretionary bars to prerogative remedies: prejudice and the public interest.
[43] Firstly, the Respondent states that requiring the Applicants to travel the distance to Mississauga is not unfair; Ontario is geographically large and sparsely populated in many areas, meaning that residents are often required to travel long distances to access justice.
[44] Secondly, they say that the alternative measures suggested by the Applicants are not reasonable – sending an SIU forensic officer to the Kanata OPP detachment undermines the SIU’s operational readiness given its limited number of forensic officers. As well, having the OPP at the Kanata detachment fingerprint the officers would undermine the public perception of the SIU as being totally independent from the police force it investigates.
[45] Thirdly, the Respondent submits that there is no issue of discrimination. It acknowledges that the Applicants are treated differently from civilians, but states that differential treatment is completely reasonable and justified because civilians are not subject to oversight by a provincial regulator. The Respondent points out that for all cases other than those in which police officers are charged with an offence while on duty, accused persons must travel to the police to be fingerprinted, whereas the Applicants are asking for differential treatment by seeking to have the SIU travel to them.
[46] In addition, the Respondent maintains that the Applicants have failed to provide evidence as to the method of travel and the resulting inconvenience, whereas there is evidence before the Court that the Applicants will be compensated for all their costs of travel and be paid for their time, and, further, that their absence will not have an operational impact on the OPS.
[47] With respect to the issue of prejudice the Respondent argues that, in order to obtain the remedy of an order of certiorari, the Applicants are required to demonstrate prejudice and have not done so, whereas the Respondent has submitted evidence demonstrating that the SIU’s operational readiness would be prejudiced if SIU forensic officers were required to travel to police officers to obtain fingerprints, and public confidence in the SIU would be threatened if the SIU outsourced fingerprinting to the OPP, or put operational readiness at risk to convenience police officers under investigation.
Conclusion
[48] It is well established that a breach of the principles of procedural fairness (or natural justice) is an excess of jurisdiction (Russell, at para. 19).
[49] The decision to implement a policy requiring officers to travel to SIU headquarters was, according to the Respondent, based on the need for operational readiness and public confidence in the SIU.
[50] A policy decision of this nature, which affects the resources of the SIU, is owed deference. It is also a relevant factor in deciding the scope of the duty of fairness in the case at bar. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817, at para. 27, L’Heureux-Dubé J. held:
[T]he analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.
[51] The argument that any threat to operational readiness is purely hypothetical and speculative does not establish that the policy change implemented by the SIU Director is unfair or unreasonable. The director should not be required to wait for a serious problem to manifest itself before taking measures designed to prevent such a problem. With only eight forensic officers available for the over 350 investigations the SIU commences per year in a province as large as Ontario, the director is required to ensure that those investigations are not jeopardized by poor resource management.
[52] At page 9 of the 2008 report of the Ombudsman for the Province of Ontario, Oversight Unseen: Investigation into the Special Investigations Unit’s Operational Effectiveness and Credibility, the following comments were made:
The SIU also fails to respond to incidents with rigour and urgency – at times inexplicably overlooking the closest investigators, and following routines that result in precious investigative minutes, sometimes hours, being lost.
[53] Prompt response to incidents and efficient use of personnel was a concern identified by the Ombudsman, and it is not unreasonable for the SIU Director to make policy decisions to address those concerns.
[54] The Ombudsman in both the 2008 and 2011 reports concerning the SIU expressed a serious concern about the SIU’s independence. At paragraph 2 of the 2011 report, Oversight Undermined: Investigation into the Ministry of the Attorney General’s Implementation of Recommendations Concerning Reform of the Special Investigations Unit, the Ombudsman stated:
Community stakeholders have, at times, accused the SIU of being ineffective and of displaying a pro-police bias… historically, the SIU’s job has been particularly challenging as a result of ingrained police resistance to its authority and the reluctance of successive governments to adopt measures that might be viewed as unpalatable by Ontario’s policing community.
[55] The Supreme Court in Woods v. Schaeffer, 2013 SCC 71, [2013] 3 SCR 1053 [Woods], also recognized the importance of operational independence. At para. 49 of Woods, Moldaver J highlighted the importance of the appearance of impartial investigations in his discussion of the purpose of the legislation that governs the SIU:
The legislative scheme is designed to foster public confidence by specifically combating the problem of appearances that flowed from the old system of “police investigating police”. The problem under that system, of course, was that it created the unavoidable appearance that officers were “protecting their own” at the expense of impartial investigations. The legislature deemed this appearance unacceptable and created the SIU to guard against it by placing investigations of the police in the hands of civilians.
[56] In Woods Moldaver J affirmed the high importance of public trust in our police forces when, at paragraph 52, he stated that a common law right to counsel in the preparation of an officer’s duty notes was inconsistent with the overarching purpose of the statute – “public trust in the police”.
[57] The Director’s decision not to delegate fingerprinting to another police forced is designed to preserve the independence of the SIU and is neither unfair nor unreasonable.
[58] Although the results of fingerprinting are unlikely to be affected by bias, this fact and the low level of inconvenience to the police officers is outweighed by the high importance of maintaining public trust and confidence in the SIU.
[59] While it may be that the OPP in Kanata are willing to conduct the fingerprinting in this case, the Applicants did not submit any evidence to the effect that, as a general rule, police forces in Ontario would be willing to either provide facilities for the SIU or to actually do the fingerprinting for the SIU.
[60] Counsel for the Applicants submitted R. v. Simons (1976), 1976 1369 (ON CA), 30 C.C.C. (2d) 162 (Ont. S.C. – C.A.), in support of their position that a requirement to travel for fingerprinting could constitute a breach of procedural fairness. In Simons, the accused persons were arrested in the County of Peterborough and charged with an offence allegedly committed in that County. The promise to appear required the accused to attend before a provincial court in Port Hope in the County of Northumberland. The accused appeared, and a date was set for a preliminary inquiry to take place at the Port Hope court. The accused sought to move the preliminary inquiry to the County of Peterborough, but their motion and subsequent application for prohibition were dismissed. On appeal, the Court granted the order for prohibition. At paragraph 20, the Court stated:
Although what is now pending before the provincial judge sitting in Port Hope is a preliminary inquiry and not a trial, those proceedings are an important step in the criminal process. There is nothing in the record to disclose why the preliminary inquiry is being conducted in Port Hope, a place which has no connection with the offence nor with the accused. If Crown counsel's contention were correct, an accused person could be directed to appear at any place in Ontario, no matter how distant from the place of his arrest or from the place where the offence was committed, and be expected to defend himself separated from those persons who could assist him. Although there is no suggestion of bad faith in this case, as is pointed out by MacLaren, J.A. in the O'Gorman case, supra, to condone the procedure adopted here, "the criminal law might become an engine of oppression and injustice". [emphasis added]
[61] Requiring the Applicants to attend in Mississauga for fingerprinting is not the same as conducting a preliminary inquiry in a region that has no connection with the offence or the accused. A preliminary inquiry, as indicated by the Court in Simons, is an important step in the criminal process. Far more is at stake in conducting a preliminary inquiry than in taking fingerprints. Moreover, the necessary resources and infrastructure existed in the County in which the offences took place in Simons, whereas, here, the argument is not that the SIU wishes to conduct fingerprinting at whichever arbitrary location it chooses, but at the only place where it is practical to do so, given the SIU’s limited resources and need to maintain independence.
[62] The Applicants also relied upon the cases of R. v. Gentles, [1994] O.J. No. 1409 (Ont. Gen. Div.), and R. v. Ellis, 2009 ONCA 483, 95 O.R. (3d) 481, to support their position. In my view, both cases can be distinguished on the facts – they dealt with the proper location for s. 507 pre-inquiry hearings, which is something far different to the issue of the location at which fingerprints are to be taken and does not engage the resource management and independence considerations that arise given the SIU’s involvement.
[63] With respect to the argument that the requirement to attend in Mississauga for fingerprinting unfairly discriminates against the Applicants by treating them differently from all other accused persons, the fact is that police officers are different from civilians in these circumstances. In contrast to civilians, those who choose the profession of a police officer are subject to a single provincial regulator, the SIU, and have a statutory duty to comply with the SIU’s investigations (s. 113(9) of the PSA).
[64] Because I find that there is no breach of procedural fairness, I do not need to go on to consider whether the Applicants have demonstrated prejudice. In any event, I would have found that the Applicants have established only that they are inconvenienced by travelling to Mississauga. In the absence of prejudice, this Court has a discretion to refuse the remedy (R Papadopoulos, v. 2005 8662 (ON CA), 201 C.C.C. (3d) 363, at para. 21).
Do the summonses authorize an unreasonable search or seizure and thus violate the Applicants’ s. 8 rights under the Charter?
Applicants’ Position
[65] The Applicants assert that fingerprinting constitutes a search and seizure within the meaning of s. 8 of the Charter and that the search authorized by the summonses (fingerprinting) violates their s. 8 rights in two ways: (1) there is no legal authority for the taking of the Applicants’ fingerprints, because the Crown has elected to proceed summarily, and because s. 2(1)(a)(i) of the ICA no longer provides lawful authority for the search; and (2) the manner of executing this search will not be reasonable, because less intrusive means are available to conduct the search. Thus, even if certiorari is unavailable as a remedy in these circumstances, in the alternative, the Court should grant a remedy to the Applicants under the Charter.
Respondent’s Position
[66] The Respondent submits that the Applicants’ position trivializes the Charter and that Canadian courts have consistently held that fingerprinting an accused does not violate and individual’s Charter rights.
[67] With respect to the argument that requiring an accused police officer to travel to Mississauga to get fingerprinted contravenes s. 8 of the Charter because doing so imposes different and discriminatory treatment, the Respondent raises three arguments. First, the Applicants have not submitted evidence of the provincial police practice for fingerprinting accused persons. Second, any inconvenience to the Applicants is minimal. Third, there is no case law supporting the principle that a reasonable search becomes unreasonable if the search requires travel.
Conclusion
[68] As stated by Lamer J. in Collins v. The Queen (1987), 1987 84 (SCC), [1987] 1 S.C.R. 265, at 278: “a search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which it was carried out is reasonable.”
[69] Section 8 of the Charter guarantees the right to be secure from unreasonable search and seizure. In order for s. 8 to be engaged, an individual must have a reasonable expectation of privacy in the thing searched or seized (R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para 25).
[70] In R. v. Beare; R. v. Higgins, 1988 126 (SCC), [1988] 2 SCR 387 [Beare], the Supreme Court of Canada left open the question of whether fingerprinting constitutes a search, as it would not have found the taking of fingerprints in the circumstances of that case to be unreasonable (at 414). Subsequently, the Supreme Court in R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13 at para. 60, and the Ontario Court of Appeal in R. v. Doré, 166 C.C.C. (3d) 225, 2002 45006 (Ont. C.A.) at 53, have made it clear that fingerprinting can engage s. 8, as individuals have a reasonable expectation of privacy in their fingerprints and the information contained therein.
[71] There is no issue here that the search (fingerprinting) is unauthorized by statute. While the Applicants argue that, given the Crown’s election, the search is no longer authorized by law, the Respondent is not trying to enforce the summonses. If the Respondent were trying to enforce, then this aspect of the s. 8 analysis would potentially be a bar. However, at this point, the Respondent is simply seeking a determination of whether it can require the Applicants and police officers charged with indictable offences committed while on duty to attend SIU headquarters for fingerprinting.
[72] There was no argument presented that the relevant provisions of the PSA and/or the ICA are unreasonable.
[73] The Applicants’ central argument is that the manner in which the search (fingerprinting) is to be carried out (the requirement of travel to Mississauga) is unreasonable.
[74] The Applicants submitted a number of impaired driving cases setting out the manner in which breath samples are to be taken. Specifically the cases deal with the requirement that breath samples be taken “as soon as practicable” and that any delays be reasonable under the circumstances. I do not find that these cases provide a useful analogy. First, there are strict statutory obligations with respect to delay in taking breath samples (s. 258(1)(c)(ii) of the Criminal Code, which sets out the “as soon as practicable requirement”) that are not applicable here. Second, the “as soon as practicable” standard is directly related to the impact of time on the concentration of alcohol in an individual’s blood, a concern that does not arise with fingerprinting.
[75] In my view, requiring police officers to travel to Mississauga to be fingerprinted at SIU headquarters is not unreasonable. Granted that it may be inconvenient; however, this is a long way from establishing unreasonableness. Furthermore, they will be paid for their time and have all of their expenses reimbursed. As Justice Finlayson stated in Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 1999 2023 (ON CA), 44 O.R. (3d) 73 (Ont. C.A.), the Charter is “intended to protect fundamental liberties, not to insulate the citizen from inconvenience, no matter how great the inconvenience may be in the individual case” (at para. 53).
[76] Had the Applicants been charged with committing an offence while not on duty, they would be subject to the same fingerprinting procedures as civilians. However, this is not the case. They are alleged to have committed an offence while on duty as police officers. As such, they come under the jurisdiction of the SIU. Differential treatment is therefore reasonable and justified.
[77] When the Applicants were sworn in as police officers they consented to be governed by the provisions of the PSA and the section therein that required them to fully co-operate with investigation conducted by the SIU.
[78] No Charter rights are engaged by requiring the Applicants to travel to Mississauga, as this is entirely reasonable. The provisions of s. 8 of the Charter are therefore not offended.
Conclusion
[79] The application is dismissed. The trial coordinator is directed to schedule a date forthwith for this case to be spoken to.
Patrick Smith J.
Released: April 7, 2015
CITATION: R. v. Blonde, 2015 ONSC 2113
COURT FILE NO.: 14-304469
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
JORDAN BLONDE
and
ERIN CAVAN
Applicants
REASONS FOR JUDGMENT
Patrick Smith J.
Released: April 7, 2015