CITATION: R. v. Noel, 2015 ONSC 2140

COURT FILE NO.: SC 48/14

DATE: 20150407

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MAURICE NOEL

Lori Hamilton, for the Crown, Respondent

Barry A. Fox, for Maurice Noel, Appellant

HEARD: January 12, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT

[1] The police clocked Mr. Noel driving at 187 km/h on Highway 401 just before 2 am one morning. When he was pulled over the police officer smelled alcohol coming from him. The police charged him with "over 80" under the Criminal Code and "stunt driving" under the Highway Traffic Act. He blew into a roadside screening device and registered a "fail". He was arrested and taken to a police station. He submitted samples of his breath. Breathalyser tests revealed concentrations of alcohol in his blood above 0.08 milligrams per 100 millilitres of blood.

[2] While Mr. Noel was at the police station he was placed in the cells. The cells were monitored by a surveillance camera. The camera apparently caught him using the toilet in the cell.

[3] Mr. Noel was tried before Justice M. McLeod of the Ontario Court of Justice. Mr. Noel's counsel attacked virtually every aspect of the police investigation. He argued that there were several Charter breaches. He argued that the police lost the statutory presumptions of the Criminal Code. He further argued that the camera in the cells was a violation of Mr. Noel's Charter rights.

[4] The trial judge found that the police did violate Mr. Noel's s. 8 rights when they made a demand that he provide a breath sample for an approved screening device, but he refused to exclude the evidence. The trial judge convicted Mr. Noel of both stunt driving and "over 80".

[5] Mr. Noel appeals on the grounds that the trial judge erred in virtually all aspects of his reasons. He says that the trial judge erred by failing to find that the cell camera amounted to a Charter violation. He says that the trial judge failed to consider whether the Crown could rely on the presumption of identity. He also argues that the trial judge failed to consider the argument that Mr. Noel's s. 9 rights were breached. He says that the trial judge erred in his application of s. 24(2) of the Charter.

[6] I agree that the trial judge made two errors. The first favoured Mr. Noel: the trial judge found a breach of s. 8 of the Charter when there was none. Section 24(2) never should have been addressed in relation to the breach of s. 8. The second error related to the breach of s. 9 of the Charter. Mr. Noel was not promptly advised of the reason for the detention. The trial judge did not deal directly with this issue. In my view, however there is no doubt that the evidence should not be excluded.

[7] For the reasons that follow the appeal is dismissed.

FACTS

[8] Sergeant Lannigan was on highway patrol in the early morning hours of March 18, 2012. He was patrolling Highway 401 in Toronto. At about 1:48 am he clocked Mr. Noel's Infinity G35 going 187 km/h in a 100 km/h zone. He followed Mr. Noel on to Morningside Avenue, where he pulled him over. He had to honk his horn to get Mr. Noel's attention. When Sergeant Lannigan went up to the driver's side window he could smell alcohol on his breath.

[9] Sergeant Lannigan decided to write up a Highway Traffic Act ticket for stunt driving. He also determined that he had reasonable grounds to believe that Mr. Noel had alcohol in his body. He called for an officer with an approved roadside screening device to attend. He did not tell Mr. Noel that he smelled alcohol on his breath. He did not tell him that he was detained so that he could provide a breath sample.

[10] At 2:00 am Constable Wong arrived. Sergeant Lannigan testified. So did Constable Wong. They both said that Sergeant Lannigan told Constable Wong that he could smell alcohol on Mr. Noel's breath, and that Sergeant Lannigan asked Constable Wong to conduct a roadside breath test. Sergeant Lannigan went back to his car to write up the stunt driving ticket while Constable Wong administered the test.

[11] Constable Wong testified that he made a demand for a breath sample from Mr. Noel while Mr. Noel was in his car. He said that he read the Approved Screening Device demand. He explained how the roadside device worked. He said that he told Mr. Noel that if he had a reading between .000 and .049 there would be no licence suspension. He also told Mr. Noel that any reading between .049 and .099 would result in an automatic licence suspension for three days. Then he told Mr. Noel that any reading above .099 would result in an arrest for "over 80". He said that Mr. Noel seemed to understand and had no questions.

[12] Constable Wong testified that he took Mr. Noel to his police car and demonstrated how he was to use the device. He gave a sample of his own breath at 2:05 am and registered a reading of .000. Mr. Noel, however, testified in cross-examination that no demand was made. Constable Wong simply showed him the device and said "you're going to be blowing into this." He said that Constable Wong did not blow into it himself. He simply instructed Mr. Noel how to blow. He did recall that Constable Wong told him he would either pass or fail. He agreed that Constable Wong showed him the device after he blew.

[13] Mr. Noel failed the roadside breath test. Constable Wong told him he would be arrested and turned him back over to Sergeant Lannigan.

[14] Sergeant Lannigan testified that at 2:11 am arrested Mr. Noel for "over 80". He read him the caution and rights to counsel from the card in his memo book. When he asked Mr. Noel if he understood, Mr. Noel replied "not exactly". Sergeant Lannigan read him his rights again. At 2:15 am he made a breath sample demand. Mr. Noel was transported to the OPP Toronto detachment. They arrived at 2:31 am.

[15] It seems reasonably clear, based on the evidence of both Sergeant Lannigan and Constable Wong, that neither officer told Mr. Noel the reasons for his initial detention.

[16] Mr. Noel testified that nobody gave him his rights to counsel, not at the roadside or in the cells. He testified that Sergeant Lannigan did not read him his rights to counsel or a breath demand. He said nothing on the way back to the station but tried to make small talk. He just arrested Mr. Noel and didn't say anything, except that he was under arrest for stunt driving.

[17] Sergeant Lannigan testified that there were video surveillance cameras installed at the detachment. One was in the main room. The main room contained the breath sample area, the telephone (for calling counsel), and the booking area. The other cameras were in the cells.

[18] Sergeant Lannigan testified that between 2:51 and 2:54 Mr. Noel spoke to duty counsel. Mr. Noel testified that he did speak to duty counsel but that he did not make a request to do so. He had a general awareness that he had the right to remain silent and the right to speak to a lawyer. He testified that he became aware that he was going to speak to duty counsel when he was taken from the cells to a telephone.

[19] At 2:56 am Sergeant Lannigan turned Mr. Noel over to Constable Flowers, the breath technician. Constable Flowers took samples of Mr. Noel's breath at 3:02 am and 3:25 am. The test results were 140 milligrams of alcohol in 100 millilitres of blood, and 130 milligrams of alcohol in 100 millilitres of blood, respectively. He was placed in the cells between providing samples.

[20] Constable Flowers turned Mr. Noel back over to Sergeant Lannigan at 3:27 am. He was placed into the cells again. The video camera was turned on. There was a large TV screen in the constable's area of the detachment. The TV had feeds from all of the cameras in the detachment. The cameras in the cells were recorded. The cameras fed into the large TV screen for security purposes.

[21] Sergeant Lannigan testified that after he took custody of Mr. Noel again at 3:27 am he was lodged in the cells. Mr. Noel was released at 4:23 am.

[22] Sergeant Lannigan testified that the TV screens were not accessible to the public, although there was one female officer in the detachment. He had no recollection of whether she was in the constable's area or was working that early morning.

[23] Mr. Noel said that he used the toilet facilities once. He was not aware that he was being videotaped. He was not aware that there were other washroom facilities that he could have used. He said that he was surprised and mortified when he learned that he had been recorded.

TRIAL AND JUDGMENT

[24] The trial proceeded as a "blended voir dire". After the three police officers (Lannigan, Wong, and Flowers) Mr. Noel testified in relation to the Charter motions.

[25] The trial judge issued two rulings. In the first, he dismissed all of the defence arguments with the exception of the s. 8 argument. Sergeant Lannigan formed a reasonable suspicion that Mr. Noel had alcohol in his body. He did not tell Mr. Noel that. Nor did he tell Mr. Noel that he was being detained so that he could perform a roadside breath test. Constable Wong, who ultimately made the demand and performed the roadside test, relied on what Sergeant Lannigan told him. That, found the trial judge, did not comply with s. 8 of the Charter. He then adjourned in order to hear arguments on whether the evidence (the breath samples taken by Constable Flowers) should be excluded pursuant to s. 24(2) of the Charter. He did not consider the s. 9 Charter argument in his reasons.

[26] The second ruling concerned s. 24(2) of the Charter. The trial judge applied the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He found that the administration of justice would not be brought into disrepute by the admission of the evidence.

ISSUES

[27] The Appellant makes a multi-pronged assault on the trial judge's reasons for judgment. He raises the following issues:

(a) Did the trial judge err in finding that the police did not violate Mr. Noel's right to privacy by filming him in the cells?

(b) Did the trial judge err in finding that Mr. Noel's right to counsel had not been violated?

(c) Did the trial judge err in failing to consider whether the Crown could rely on the presumption of identity?

(d) Did the trial judge err in failing to consider whether Mr. Noel's right to know the reason for his detention was breached?

(e) Did the trial judge err by failing to exclude the breath samples?

ANALYSIS

(a) Did the trial judge err in finding that the police did not violate Mr. Noel's right to privacy by filming him in the cells?

[28] The trial judge assumed that the Mr. Noel's penis was filmed and would have been visible in the constable's room on the large-screen television. He said that the standard of privacy for men and women lodged in the cells of a police station varied under the circumstances. Mr. Noel's counsel, Mr. Fox, argues that the trial judge erred by applying a different privacy standard to men and women. He argues that this statement by the trial judge is highly problematic:

At the risk of expressing the absurdly obvious, there is a difference between males and females with respect to the use of toilets and the degree of exposure involved. Ms. Mok, because of her intoxication and her sex the exposure was regarded as being particularly significant, and particularly personal.

There remains a real difference between males and females in terms of the privacy considerations involved, at least as far as I am able to assess community perceptions and understanding. Men urinating in a public place is not an unusual sight, and does not attract the same attention and concern as when a woman does the same thing.

[29] Ms. Hamilton, for the Crown, did not take on this statement in her submissions. She did not comment or attempt to justify it – wisely in my view.

[30] The trial judge appears to have based his decision that was no violation, or a minimal violation of s. 8 on there being different expectations of privacy between men and women held in custody:

And I cannot escape the conclusion that there is something very troubling, very troubling, about allowing male officers to watch a young woman exposing herself while using the toilet, men who had the power over a woman watching her expose herself. This image conjures up concerns that are completely artificial in my estimation in the context described in this case, where there is a possibility that a female officer passing through the common room might see Mr. Noel standing by the toilet urinating. I take the position there is no equivalency.

[31] The trial judge then found that the violation of the right to privacy is different for men and women:

There was a violation of Mr. Noel's privacy, but it is not the same as the violation involved in the situation where the subject is a young woman, or a woman period, and it does not attract the same level of concern on behalf of the community and the justice system.

[32] The trial judge then refused to impose a stay. He set out several grounds for refusing to do so.

[33] I agree with Mr. Fox that the trial judge erred in finding that different standards of privacy apply to men and women. I find, however, that the trial judge was correct not to impose a stay.

[34] In R. v. Mok, 2012 ONCJ 291, 258 C.R.R. (2d) 232, [2012] O.J. No. 2117, 2012 CarswellOnt 5939, a decision of Justice West of the Ontario Court of Justice, Ms. Mok was arrested for a routine drinking and driving case. She was lodged in a holding cell. The cell was under video surveillance. The cell toilet was completely out in the open and visible to the camera. Ms. Mok used the toilet twice. The camera caught a full frontal view of Ms. Mok urinating. Additionally, she had to walk across the cell, again in full view with her pants around her ankles, in order to get the toilet paper. Both male and female police officers monitored her use of the toilet. She was kept in the cells for 7.5 hours, much longer than necessary to perform breath tests. The police had testified that she was so exceptionally intoxicated that they did not believe she could be safely released. The police also testified that much of the police station is videotaped, for the safety and security of the prisoners as well as the police.

[35] West J. agreed that Ms. Mok's rights under s. 8 of the Charter were violated. He acknowledged that the police had legitimate safety and security concerns. Those concerns might well require keeping a prisoner under constant video surveillance under some circumstances. That said, Ms. Mok had no record. There were no articulated concerns that she might have weapons, or harm herself, or mingle with other prisoners. There was nothing to justify having her private bodily functions monitored by male officers and videotaped. He ordered a stay of proceedings as a remedy.

[36] The Mok case was decided on May 3, 2012. The Crown appealed. On January 7, 2014 Boswell J. of this court allowed the Crown's appeal in the Mok case: R. v. Mok, 2014 ONSC 64, 299 C.R.R. (2d) 352, 59 M.V.R. (6th) 234, 2014 CarswellOnt 27, [2014] O.J. No. 44. Boswell J. found that West J. did not err in finding a violation of Ms. Mok's s. 8 rights, but did err in imposing a stay of proceedings. As I understand it, the Ontario Court of Appeal has granted leave but has not yet heard the appeal at the time of the writing of these reasons.

[37] On November 26, 2013 the trial judge in this case delivered his reasons dismissing the Charter applications, including the application alleging a violation of the right to privacy. He delivered his reasons for refusing to exclude the evidence on March 27, 2014. Thus, the trial judge here delivered his first set of reasons after West J.'s trial decision but prior to Boswell J.'s summary conviction appeal decision, and his second set after Boswell J.'s decision allowing the Crown appeal.

[38] Justice West followed his decision in Mok in R. v. Chasovskikh, [2013] O.J. No. 16, 274 C.R.R. (2d) 312, where he concluded that a less egregious violation also merited a stay.

[39] In R. v. Orenchuk, 2014 ONCJ 650, [2014] O.J. No. 5864 Monahan J., on facts not dissimilar to those in this case (although the accused was female) refused to order a stay on the grounds that there is a reduced expectation of privacy in a jail cell. He agreed that the accused's rights under s. 8 were violated. He found that it would not, however, have been objectively reasonable for a prisoner to conclude that he or she was under no observation at all. Accordingly, the violation was not serious. Monahan J. found that the circumstances did not justify a stay of proceedings.

[40] R. v. Griffin, 2015 ONSC 927, [2015] O.J. No. 611 is a summary conviction appeal decision of my colleague Dawson J. that was released just prior to the hearing of this appeal. I found that case to be of great assistance. The accused was charged with "over 80" and held in a cell. She was videotaped using the toilet. The trial judge was provided with evidence from a senior Ontario Provincial Police officer. The evidence set out the concerns of the OPP regarding the safety and security of persons held in custody. The affidavit noted that surveillance had been introduced because of recommendations from Coroner's inquests in four separate cases where deaths had occurred. The OPP was, however, aware of the criticism of its practices in the Mok case. The officer described steps that had been taken to adequately safeguard the right to privacy.

[41] The trial judge in that case found that there had been a violation of s. 8 of the Charter, but refused to impose a stay. The appeal was solely directed to whether the trial judge had erred in refusing to impose a stay. The trial judge applied the test set out by the Ontario Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, 254 C.C.C. (3d) 133, 319 D.L.R. (4th) 412, 2010 CarswellOnt 2253, [2010] O.J. No. 1548. At the risk of simplifying the trial judge's nuanced and complex analysis in that case, she essentially balanced several factual factors to find that the misconduct did not warrant a stay. Dawson J. determined that she correctly engaged in the balancing process set out for cases in the "residual" category and dismissed the appeal. I will say more about the balancing process set out in Zarinchang below.

[42] Turning to this case, the trial judge very obviously erred in finding that expectations of privacy in a cell are different for men and women. The trial judge noted that men frequently urinate in public as at least one justification to support this proposition. This logic is dubious. Public urination by some men has nothing to do with the objective expectation of privacy enjoyed by all persons in a jail cell.

[43] There was no evidence as to the nature of the exposure of Mr. Noel while he was in custody because the video was not available for trial. It is unknown if the one female officer was on shift that early morning. It is unknown if Mr. Noel was fully exposed on camera or not, like Ms. Mok. The trial judge accepted for the purposes of the trial that he likely was.

[44] Given that assumption, the trial judge was right to find a violation of s. 8 of the Charter, although he found that it was minimal. I agree with him that there was one. The trial judge's error, however, was to assume that the violation was minimal, given that Mr. Noel was a man in custody, rather than a woman. Although context matters, and there may be different expectations of privacy in different situations, a person does not enjoy fewer Charter rights based on gender. For example, in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 the Supreme Court set out all the reasons why a public strip search is a violation of the dignity and security of the person of an accused individual held in custody. Golden involved a male person. There is no principled reason to find that men in custody have a lower expectation of privacy than women in custody.

[45] I do not agree that the violation was minimal, but there is no doubt that there is simply a much-reduced expectation of privacy in a jail cell. It would be inconceivable – and negligent – if the police failed to monitor prisoners in their care in some way. There are obvious safety and security reasons for that. Furthermore, anyone lodged in the cells either knows or ought to know that. Although different judges (both in the Superior Court and in the Ontario Court of Justice) have come to different results, all are unanimous that there is a reduced objective expectation of privacy in a jail cell. That does not mean that there is no expectation of privacy. The police have an obligation to respect the privacy of prisoners. They also have a duty to safeguard the security and safety of those prisoners. These obligations must be balanced. The manner in which those rights and obligations are balanced has an impact on the level of privacy and the nature of the s. 8 Charter violation, if there is one.

[46] The question then becomes whether the trial judge erred in refusing to impose a stay of proceedings.

[47] In this case, regrettably, the trial judge did not engage in any meaningful analysis of any of the factors set out by the Supreme Court of Canada for determining whether a stay should be imposed. He simply stated this:

If I am wrong in that I would find this is not a case where the shock to the community would make this the clearest of cases where a stay is the only viable remedy, and I would consider some remedy in terms of penalty as meeting the ends of justice.

[48] I agree with the trial judge that the circumstances did not warrant a stay. I disagree with the basis upon which he refused to impose one.

[49] In determining whether a stay should issue, I note that the violation of the rights of prisoners, although minimal, was systematic. In that sense, it was not unlike the violation canvassed by the Ontario Court of Appeal in Zarinchang.

[50] In Zarinchang the Court, applying long-standing principles, noted that there are two categories of cases where a stay may be imposed. The first is where the fairness of a trial may be affected by reason of state misconduct. The second is the so-called residual category. The residual category involves state misconduct that does not affect the fairness of the trial. Rather, the state misconduct contravenes our fundamental notions of justice and undermines the integrity of the judicial process.

[51] The Court of Appeal noted that in either situation (the fairness category or the residual category) a judge must first determine whether the prejudice is prospective: a stay is not meant to punish past transgressions. Thus, the trial judge must analyze whether the prejudice will be aggravated or perpetuated by the trial or the outcome. If the answer is yes, then the trial judge must then determine that no remedy other than a stay is capable of removing the prejudice.

[52] The Court of Appeal also noted a third principle at paras. 57-58:

In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.

[53] The Court pointed out that in cases where the prejudice was caused by systemic issues a stay is ordered to prevent a continued prosecution where the issues causing the prejudice continue. The Court continued at paras. 60-61:

However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category.

[54] The Court of Appeal's analysis was cited with approval by the Supreme Court of Canada in its latest consideration of the principles: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 43.

[55] I have no doubt that had the trial judge properly balanced the state interest in a prosecution on the merits against the violation in question, he undoubtedly would have dismissed the stay application. The violation, while not minimal, was also not egregious. As against that, there is an important societal interest in the prosecution of offences involving drinking and driving. There is also an important state interest – and individual interest – in the monitoring of the safety and security of prisoners.

[56] I also note that in Griffen there was evidence that the OPP had taken steps to deal with some of the concerns raised in Mok. No such evidence was before the trial judge, and none was put before me. Admittedly, that evidence involved the OPP in a different part of the Greater Toronto Area. That said, no case is decided in a vacuum. Griffen took note of steps taken by the police to remedy a systemic problem. To ignore that would involve a certain amount of judicial ostrich-like behaviour.

[57] I therefore dismiss this ground of appeal.

(b) Did the trial judge err in finding that Mr. Noel's right to counsel had not been violated?

[58] Mr. Fox argues that the trial judge misapprehended the evidence of Sergeant Lannigan. He contends that misapprehension caused the trial judge to err in finding that Mr. Noel's right to counsel had not been violated. The crux of his argument is that the trial judge failed to reconcile inconsistencies in Sergeant Lannigan's evidence. He says that Sergeant Lannigan testified in chief that he gave Mr. Noel his rights to counsel, but essentially backtracked during cross-examination. This, he argues, is critical to determining whether Mr. Noel was given a meaningful right to counsel.

[59] I must respectfully disagree. Sergeant Lannigan testified in chief that when he read Mr. Noel his rights to counsel and asked him if he understood, Mr. Noel responded "not exactly". Sergeant Lannigan then explained to Mr. Noel that he could call a lawyer or duty counsel, which is free. He testified that many people need to have the right to counsel explained to them again. His evidence under cross-examination was much the same. In re-examination Sergeant Lannigan testified that Mr. Noel indicated at the roadside that he wished to speak to duty counsel. Sergeant Lannigan then facilitated the call at the police station. I have reviewed the transcript and I simply can't see any meaningful contradiction between Sergeant Lannigan's chief and his cross.

[60] Mr. Fox also argues that the trial judge misapprehended the evidence on this point. Again, I disagree. The trial judge dealt with the issue at length. He examined the facts in great detail. He found that the police had satisfied the informational component of the s. 10(b) right. An appellate court will not interfere with a finding of fact absent palpable and over-riding error: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. Indeed, a mere error of fact does not justify appellate intervention unless that error goes directly to the reasoning process of the trial judge: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, [1995] O.J. No. 639 (C.A.) at para. 93.

[61] It is important to note that Mr. Noel testified that he was never given his right to counsel at all. Indeed, Mr. Noel's testified that all three police officers failed to follow mandated procedures at each and every step of the process. The trial judge rejected Mr. Noel's evidence. He preferred the evidence of all three police officers, including Sergeant Lannigan. Trial judges are afforded a great deal of deference on matters of credibility: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788.

[62] There was evidence upon which the trial judge could have found as a fact that Sergeant Lannigan read Mr. Noel his right to counsel, and ensured that Mr. Noel understood. A trial judge need not resolve every inconsistency in the evidence of a witness in order to make a credibility determination: R. v. M.E.N. 2014 ONCA 69, [2014] O.J. No. 1507

[63] I therefore dismiss this ground of appeal.

(c) Did the trial judge err in failing to consider whether the Crown could rely on the presumption of identity?

[64] Mr. Fox also argues that the trial judge erred in failing to consider whether the Crown could rely on the presumption of identity. There are three aspects to this argument:

• the police did not make a valid roadside screening demand;

• the trial judge failed to consider whether the Crown could rely on the presumption of identity; and,

• the breath demand was not made "forthwith" and the Intoxilyzer test was not administered "as soon as practicable".

[65] I respectfully disagree with all three points.

[66] As I have earlier noted, the trial judge gave two rulings. In the first ruling the trial judge dismissed the s. 10(b) Charter application, dismissed the application in respect of the video monitoring of the cells. He also found a violation of s. 8 in relation to the reasonable suspicion of the officers. In the second ruling the the trial judge said that his first ruling had caused some confusion. He sought to clarify. He also dealt with the s. 24(2) arguments.

[67] I deal with the roadside demand issue first. The argument goes like this: the trial judge found that there was a violation of s. 8 of the Charter because the initial breath demand was not valid. The demand was not valid because Sergeant Lannigan did not make it. He merely formed reasonable suspicion and, without saying anything to Mr. Noel, went back to his car to call for another officer to bring the screening device. He told Constable Wong that he could smell alcohol on Constable Wong's breath. Constable Wong then made the roadside demand. Constable Wong did not have independent grounds for making the demand, which was the source of the violation.

[68] Since the roadside screening demand was not valid, the subsequent taking of a sample of Mr. Noel's breath by the approved screening device was not valid. That, in turn, rendered the arrest for "over 80" and subsequent breathalyser demand invalid. In other words, the invalidity of the initial demand made each subsequent step invalid.

[69] The trial judge said this:

… it appears the demand made by Constable Wong did not comply with s. 254(2) of the Code, because there was absolutely no evidence that Constable Wong had any independent grounds for suspicion, or that he formed the requisite subjective opinion.

[70] The trial judge thus accepted the argument. He then went on to find that since the demand was invalid, the subsequent seizure of Mr. Noel's breath was a violation of s. 8 of the Charter. The trial judge obviously dealt with the point, although, for reasons I set out below, I think he erred in even finding a violation, since he also found that reasonable suspicion existed. There was certainly ample evidence upon which an officer could have made a valid roadside demand.

[71] No authority was cited to support the proposition that a technically invalid roadside demand in the absence of a Charter challenge invalidates the entire process. That is because I think the authority goes in the other direction. Although the analogy is not perfect, the reasoning in R. v. Rilling, [1975] S.C.R. 72 and R. v. Charette, 2009 ONCA 310, 94 O.R. (3d) 721 applies.

[72] Rilling was a pre-Charter case. The officer who made the demand did not have reasonable and probable grounds to believe that Rilling was driving while impaired. Rilling provided the breath certificate. The Supreme Court of Canada held that even in the absence of reasonable grounds, the statutory presumption of accuracy applied. The lack of reasonable grounds might provide a defence to a charge of refusal to blow.

[73] In Charette the Ontario Court of Appeal faced a similar issue regarding the presumption of identity. There was no Charter application. The trial judge found that there were no reasonable grounds to make a demand and applied Rilling. The summary conviction appeal judge found that Rilling was no longer good law since the Charter and allowed the appeal.

[74] Moldaver J.A. (as he then was) found that there was no principled reason not to apply Rilling in the context of the presumption of identity and went on to consider the implication of the fact that Rilling was decided pre-Charter. He found that Rilling was still good law. The Crown did not have to prove that there were reasonable and probable grounds for an officer to make the demand. Rosenberg J.A. came to the same conclusion in R. v. Grundy, 2008 ONCA 284, 231 C.C.C. (3d) 26.

[75] I turn to the contention that the trial judge failed to consider whether the Crown was entitled to rely on the presumption of identity. I think the trial judge clearly did so. He said this during his s. 24(2) ruling:

… In particular, there was no triggering of section 10(a) – or sorry, 10(b) because Constable Wong arrived with the alcohol screening device within a few minutes. There was nothing problematic about the timing…

There was nothing about the alcohol screening device process that raised any issue. Constable Wong followed the accepted procedures, he had the requisite knowledge of the device to establish that it was an approved device, and he confirmed that it was in working order and calibrated. The device registered a fail. This is a finding of fact which is undisturbed by the circumstances leading up to the test. This is a trained officer using an approved instrument. The fail result supports an objective finding that there were grounds for the subsequent breathalyser demand and for the arrest of the accused on an over 80 charge.

… What we are talking about in the present case is whether the technical requirements of the Code have been complied with in regards to an alcohol screening device test which otherwise appears to be completely satisfactory. I clearly and repeatedly said that reasonable suspicion existed subjectively on the part of Sergeant Lannigan, and objective determined in the hearing… And the absence of any problems associated with the device, with the test, or with Constable Wong's understanding of either the machine or the test, I am not aware of any authority which indicates in reviewing the process leading up to the breathalyser demand a judge is entitled to disregard the results of the alcohol screening device test as a component in reasonable grounds where there was a deficiency in the demand but no problem undermining the reliability of the result or its interpretation or its application to the breath demand.

[76] I turn to the "forthwith" and "as soon as practicable" arguments. Where a police officer has reasonable grounds to suspect that a person has alcohol in their system, the demand for a breath sample must be made "forthwith". The Code also requires that after the roadside screening test is administered (and failed) the second breath analysis must be done as soon as practicable, and, in any event, within two hours.

[77] As mentioned, the trial judge dealt with the statutory presumptions, although he did not do so in a detailed way. He did not need to. The defence did not press these two points aggressively, either at trial or on appeal, likely because it was obvious from the record that these points could not succeed. As the trial judge observed, Constable Wong arrived with the screening device only a few moments after Mr. Noel was pulled over. In fact, Constable Wong arrived at 2:00 am and spoke to Sergeant Lannigan. He made the demand at 2:01 am (after acquiring reasonable suspicion from the other officer) and administered the test at 2:05 am. I cannot see how, under the circumstances, the "forthwith" requirement was not met: R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307, 2012 CarswellOnt 2569, [2012] O.J. No. 779.

[78] I make the same finding with regard to the "as soon as practicable" requirement. The police arrested Mr. Noel at 2:11 am. He arrived at the detachment at 2:31 am. Mr. Noel spoke to duty counsel between 2:51 and 2:54 am. Within two minutes of speaking to duty counsel, at 2:56 am Constable Flowers, the breath technician, took control of Mr. Noel. The first sample was taken at 3:02 am. This was 1 hour and 14 minutes after Sergeant Lannigan pulled over Mr. Noel. It was not articulated to the trial judge how this time frame, which was well within the two-hour window, failed to meet the "as soon as practicable" requirement. Even though the Crown is not required to provide a detailed time analysis, there is little mystery about what happened. It is clear from the record that the Crown demonstrated that in all the circumstances the samples were taken within a reasonably prompt time: R. v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489, 208 O.A.C. 379, 29 M.V.R. (5th) 260, [2006] O.J. No. 1138, 2006 CarswellOnt 1759 (C.A.) at paras. 12-13. That is implicit in the trial judge's reasons. In my view no further articulation was necessary: Sheppard, at para. 46.

[79] This ground of appeal is dismissed.

(d) Did the trial judge err in failing to consider whether Mr. Noel's right to know the reason for his detention was breached?

[80] The trial judge said this in s. 24(2) Charter ruling:

In our case, the first point to acknowledge is that regardless of any difficulty in the alcohol screening process, Mr. Moel was lawfully detained throughout the relevant period in relation to the charge of stunt driving. Whether or not the police followed upon the suspicion that he had committed a drinking and driving offence, Mr. Noel was lawfully detained at the roadside pending decisions on that charge, that charge being stunt driving.

[81] On the evidence, it is clear that neither Sergeant Lannigan nor Corporal Wong told Mr. Noel that he was also being detained for the purpose of a roadside screening. Mr. Fox does not challenge the legality of the detention. He does argue, correctly in my view, that the police did not comply with s. 9 of the Charter.

[82] The trial judge therefore erred by failing to at least consider this issue. That, of course is not the end of the matter. As an appellate court, I am required to engage in the s. 24(2) analysis, which I do below.

(f) Did the trial judge err by failing to exclude the breath samples?

[83] Mr. Fox argues that the trial judge failed to properly apply the factors in Grant in relation to the violation of s. 8 of the Charter. Had he done so, he says, the breath samples would have been excluded.

[84] I respectfully disagree. The framework for analysis was set out at para. 71 of Grant:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[85] Where the trial judge has considered all of the appropriate factors, and not made any unreasonable findings, an appeal court owes him or her considerable deference: Grant, para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248 at para. 5; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215.

[86] I deal first with the s. 8 violation. The trial judge found that the Charter-infringing state conduct was not particularly serious. There was no doubt that Sergeant Lannigan was suspicious that Mr. Noel had alcohol in his system. That suspicion was objectively reasonable. There were no other problems with the demand or the reliability of the results. Mr. Noel relied, at trial, on R. v. Au Yeung, 2010 ONSC 2292, 93 M.V.R. (5th) 217, 75 C.R. (6th) 78, 2010 CarswellOnt 2326, [2010] O.J. No. 1579. In that case, Ducharme J. allowed an appeal on the basis that a trial judge had erroneously admitted breath samples. There was a real question about the reliability of the training of the officer, the reliability of the approved screening device, and the basis for the breath demand. The trial judge distinguished Au Yeung, correctly, in my respectful view.

[87] My only disagreement with the trial judge on this point is that I believe he erred in even finding a Charter breach.

[88] In R. v. Padavattan (2007), 2007 18137 (ON SC), 223 C.C.C. (3d) 221, 45 C.R. (6th) 405, 49 M.V.R. (5th) 261, [2007] O.J. No. 2003, 2007 CarswellOnt 3196 a police officer was suspicious that the accused had alcohol in his system. That officer made the breath demand and called for an approved screening device. A different officer administered the test. That officer did not have any independent grounds for determining whether the accused had alcohol in his system. The first officer did not provide him with any.

[89] Ducharme J. of this Court stated the following at paras. 14 and 20:

It is true that s. 254(2) of the Code requires that the officer making the demand also form the opinion as to the sufficiency of the sample. However, neither R. v. Telford nor R. v. Shea stands for the proposition that: (1) the officer who administers the ASD test must have made the demand; or (2) the officer who administers the ASD test must have formed the reasonable suspicion.

In my view, the clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed the reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, an officer who makes the demand may require the subject to accompany him for the purpose of the test. However, where these requirements are satisfied, there is nothing in the language of s. 254(2) that expressly or by implication precludes the ASD test being administered by another officer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test.

[90] Although the trial judge relied heavily on Padavattan, I have some difficulty understanding how he arrived at the conclusion that the roadside demand made by Constable Wong was invalid. It is true that in Padavattan the original officer made the demand and performed the arrest, but I cannot see how it makes any difference which officer performs which task, as long as the requisite reasonable suspicion exists. To say that the fact situation in Padavattan does not give rise to a Charter violation but the fact situation in this case does is to make a distinction without a difference.

[91] The decision of the Saskatchewan Court of Appeal in R. v. Nahorniak, 2010 SKCA 68, 256 C.C.C. (3d) 147, [2010] 11 W.W.R. 210, 359 Sask.R. 15, 2010 CarswellSask 324, [2010] S.J. 300 is on all fours with this case. In that case, a police officer, Sergeant McStay, stopped Nahorniak. He smelled alcohol coming from his car. He called for another officer to bring an approved screening device. Constable Knowles arrived with a device. Sergeant McStay told Constable Knowles that he smelled alcohol on Nahorniak. Constable Knowles made the demand. The Court found that Constable Knowles was entitled to rely on the information provided to him by Sergeant McStay. He was not required to do an independent investigation in order to verify whether Sergeant McStay was correct. The court said this at para. 22:

It is not necessary for an officer to independently investigate and verify grounds of reasonable suspicion conveyed to him as long as he subjectively believes them. For Knowles specifically, it was enough that he knew the grounds and believed them at the time he made the demand and his belief was objectively and subjectively reasonable.

[92] I respectfully adopt the reasoning in Nahorniak. It therefore follows that Constable Wong was entitled to rely on the observations of Sergeant Lannigan when he made the roadside demand of Mr. Noel. The Crown was permitted to rely on the presumption of identity. With the greatest of respect, the trial judge was incorrect in finding a violation of s. 8 of the Charter, since he found that Sergeant Lannigan possessed reasonable suspicion (objectively and subjectively). Had the trial judge correctly assessed the facts and the law he would not have found a breach.

[93] Even if I am wrong, I fail to see how this aspect of his s. 24(2) ruling was unreasonable. The violation could hardly be considered serious. The Court in Grant (at para. 108) distinguished between egregious, deliberate police misconduct that disregards the rights of the accused, and police error that is committed in good faith. The trial judge's s. 24(2) ruling is consistent with this principle.

[94] Regarding the second factor, the impact of the breach on the Charter-protected interests of the accused, the trial judge stated that it was hard to see a significant impact. He described the impact in the latter situation as "negligible". This, too, was a reasonable finding. Furthermore, it is anchored in Grant itself: see para. 109. The taking of the breath samples falls towards the less intrusive spectrum. It is closer to taking a fingerprint than it is to forcibly taking a blood sample.

[95] Finally, regarding the third factor, the trial judge referenced on this statement in Grant at para. 11:

… where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[96] The trial judge found that this case was a "classic example" of a case where the violation was not egregious. In my view, this aspect of the trial judge's 24(2) ruling is unassailable: it was reasonable for him to find that the societal interest in a trial on the merits weighed in favour of admission.

[97] I turn now to whether the s. 9 breach should result in the exclusion of the breath samples. In applying the first of the Grant factors, I find that the Charter-infringing state conduct was not serious. Constable Wong told Mr. Noel that he would be subject to a roadside screening device. Mr. Noel was told of the consequences of each blood alcohol concentration reading. Constable Wong did that shortly after arriving, and shortly after speaking to Sergeant Lannigan. That would have been less than 15 minutes after he was pulled over. That can hardly be considered serious.

[98] It is also hard to see how the breach had a significant impact on the Charter-protected interests of Mr. Noel. There were no violations of s. 8 or s. 10(b) of the Charter that flowed from the breach. He was lawfully detained on the stunt driving charge and subject to a valid roadside breath demand. I find that the impact was minimal.

[99] Given the minor nature of the violation and the minimal impact, I find that the societal interest in a trial on the merits is strong. Impaired driving is a criminal offence that has a disproportionate effect on the rest of society. We all have to use the highways. One drunk driver can make those highways enormously dangerous. I therefore find that this factor favours admission.

[100] In all the circumstances, then, the breath samples are not excluded as a result of the breach of s. 9.

DISPOSITION

[101] The appeal is dismissed.

R.F. Goldstein J.

Released: April 7, 2015

CITATION: R. v. Noel, 2015 ONSC 2140

COURT FILE NO.: SC 48/14

DATE: 20150407

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MAURICE NOEL

REASONS FOR JUDGMENT

R.F. Goldstein J.