ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-0042-AP
DATE: 2015-10-08
B E T W E E N:
Her Majesty The Queen,
Mary-Anne Mackett, for the Crown
Respondent
- and -
Spencer Matthews,
Michael Hargadon for the Applicant
Applicant
HEARD: September 22, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons For Judgment
[1] The applicant, Mr. Matthews, was convicted of impaired driving and failing to provide a breath sample, contrary to ss. 253 (1) (a) and 254 (3.3) of the Criminal Code. He was fined $2500. His driving privileges were suspended for the mandatory minimum period of one year.
[2] The applicant has served and filed a Notice of Appeal of these convictions. The grounds of the appeal are that the trial judge erred in law by dismissing an application for relief under ss. 9 and 24 (1) of the Charter and that the reasons given were insufficient. The Charter application was for a stay of the conviction based on arbitrary detention after his arrest ("over holding").
[3] In this application, Mr. Matthews seeks a stay of the driving prohibition pending appeal, pursuant to s. 261 of the Criminal Code.
Overview
[4] In R. v. Won, 2012 ONSC 775, Code J. stated:
[5] Section 261 of the Criminal Code does not set out any statutory test for the granting of a license suspension stay, pending appeal. It simply grants a broad discretion:
… the court being appealed to may direct that any prohibition order under s. 259 … on any conditions that the judge or court imposes, be stayed …[Emphasis added].
[6] However, as a matter of practice, the test that has developed is analogous to the related powers found in s. 679 and s. 683(5), which deal with bail pending appeal and with stays of fines, probation orders and other sentences pending appeal. The statutory tests set out in these two provisions are that the “appeal is not frivolous”, that relief from the underlying sentence is “in the interests of justice”, and that maintaining the underlying sentence is “not necessary in the public interest”.
[7] In my view, to meet these three tests in drinking and driving cases, the materials filed on a s. 261 Application must satisfy the court that the appeal has some arguable merit, that it will cause hardship to the Applicant if the stay is not granted, and that the Applicant is not a danger to the public.
[8] Mr. Matthews argues that the appeal has "some arguable merit", that the driving prohibition is a hardship, and that he is not a danger to the public. The Crown argues that the appeal is without merit and that the driving prohibition is an inconvenience rather than a hardship. The Crown does not seriously contend that Mr. Matthews is a danger to the public given his lack of criminal record.
"Some Arguable Merit"
[9] The Charter application was based on what is colloquially referred to as "over holding"; that is, Mr. Matthews should have been released much earlier than he was following his arrest. Here, Mr. Matthews was detained for between 8 and 9 hours following his arrest. To determine whether there is "arguable merit", a review of the trial evidence is necessary.
[10] Constable Saunders testified that about 2:38 am on the offence date he and Constable Lind were driving on Arthur Street. They saw an approaching vehicle do a sudden U-turn and then accelerate away in the opposite direction. The speed limit on Arthur Street is 50km/h. The officers pursued and had to accelerate to approximately 85 to 90 km/h to catch up to the vehicle. The vehicle turned off Arthur Street and the officers activated the roof lights. They saw the vehicle brake hard and do another sharp turn. Eventually, the vehicle pulled over. Constable Saunders questioned the driver who was Mr. Matthews. In response to questioning, Mr. Matthew said he had two beers. Constable Saunders described Mr. Matthews as having "glossy eyes", "slow speech in answering questions" and that he smelled alcohol on Mr. Matthews' breath. He also testified that Mr. Matthews stumbled when exiting his truck.
[11] Constable Lind gave similar evidence and further testified that Mr. Matthews was unsteady or was having difficulty walking at the station.
[12] Constable Harnden was the breath technician who dealt with Mr. Matthews at about 3:10 am. He observed that Mr. Matthews had a "moderate odour of alcohol on his breath", "somewhat slowed speech", "glassy, bloodshot" eyes and a "very flushed" face. The "booking room" video was played at trial but not in evidence before me on this application.
[13] Mr. Matthews refused to provide a breath sample and was charged and placed in the cells. Constable Harnden also had duty that night as the jailer and he said that intoxicated persons are detained. "We do not release people that are intoxicated from custody". He says that the normal period of holding is between 6 to 8 hours. The decision to release is ultimately made by the watch commander. He testified that safety checks were done on detainees every 30 minutes. He has no recollection of his interactions with Mr. Matthews while Mr. Matthews was detained in the cells. Constable Harnden went off shift about 6:30 am.
[14] Constable Forshaw was another officer responsible for cellblock checks that morning. He completed a form indicating that the checks were done every 30 minutes. Similarly, he has no recollection of interactions with Mr. Matthews. He confirmed that it is the practice of the Police Department not to release intoxicated people and that the detainee is engaged in conversation when the officers believe that the detainee may be in a condition to release. Otherwise, the 30 minute checks are simply safety checks.
[15] The trial was adjourned to allow the defence to determine whether they wished to have the watch commander and Mr. Matthews testify. When the trial resumed the defence elected to call no evidence.
[16] In convicting Mr. Matthews and dismissing the Charter application, the trial judge stated:
Here taking all of the evidence into account and the arguments brought forward by counsel for Mr. Spencer Matthews and for the Crown I would hold that beyond a reasonable doubt based on the evidence adduced and the videos offered that he is guilty of the charges as brought forward and is not saved in the Charter arguments as brought forward.
Taking into consideration I agree with counsel for the accused that the cases are all over the map but in my finding in the facts in this case and the actions of the accused the Charter cannot succeed in this regard in that the over holding, based on the evidence of the only jailer that was brought forward was proper and just in the circumstances. That is the ruling of the court.
"Hardship"
[17] In support of this application an affidavit of the applicant was filed. With respect to hardship, Mr. Matthews deposed as follows:
I am employed at Resolute Forest Products as a production worker. This is a full-time position. While my conviction has not resulted in my termination from work, the driving prohibition to which I am subject has made attending work regularly exceedingly difficult. I am required to arrange rides through family members, friends, and co-workers. My shifts typically end at 6 A.M.
Until my conviction, I also worked for a family-run business as a delivery driver. My licence prohibition has presented significant difficulties for this business, with concomitant financial hardship for both myself and my family.
[18] No other evidence on hardship was offered.
Positions of the Parties
"Some Arguable Merit"
The Applicant
[19] Counsel for Mr. Matthews admits that the burden is on the appellant, on a balance of probabilities, to show that a stay of the order should be granted. Further, he submits that the law is as set out in R. v. Won, 2012 ONSC 775, as reproduced above.
[20] Mr. Matthews argues that this is a prima facie case of arbitrary detention and, as such, there is an evidential burden on the Crown to present evidence justifying the detention. The applicant relies upon R. v. Hardy, 2015 MBCA 51 at para. 42. In that case, it was stated that the evidential burden arises because "it is the police officers who have the exclusive knowledge of the reasons for the detention." Mr. Matthews argues that there is no evidence of his condition during detention because none of the officers had any independent recollection of his condition.
[21] Following R. v. McPherson, 1999 BCCA 638, the applicant argues that frivolous, in the context of “some arguable merit”, means "that the appeal has so little chance of success that no one could possibly believe that it could succeed…". ( at para 5)
The Crown
[22] Also following Hardy, the Crown argues that at trial, the accused bears the legal burden of proving an arbitrary detention (para. 37) and, that the remedy, a stay, is granted only in the "clearest of cases". See R. Dehaney 2014 ONSC 4182 at para.59. As noted in Hardy, "appellate jurisprudence has consistently held that a judicial stay of proceedings is not an appropriate remedy in circumstances such as this, where the alleged conduct is post-offence and post- investigation." (para. 67)
"Hardship"
The Applicant
[23] During the argument, counsel for the applicant admitted that the distance from Mr. Matthews’ residence to his place of work is not great and that, usually, Mr. Matthews is able to obtain rides from coworkers.
[24] Mr. Matthews submits that it is open to this court to stay the driving suspension with conditions that Mr. Matthews only operate a motor vehicle with a blood alcohol level of 0% and that he be required to submit to an alert demand or other approved screening device at any time by any police officer without the requirement of reasonable and probable grounds.
The Crown
[25] The Crown characterizes this as an inconvenience rather than hardship but should this court find that a stay should be granted submitted it be on the conditions that Mr. Matthews:
a) Only drive a car with ignition interlock installed
b) Not drive between the hours of 8 pm and 6 am
c) Drive only to and from a specific work locations during certain hours
d) Be alcohol-free while in the driver’s seat of a motor vehicle, and to submit a sample of breath upon request by a peace officer.
Analysis
[26] I have determined that Mr. Matthews has satisfied the test that his appeal has some arguable merit. However, I find that he has not satisfied the hardship test. Therefore, his application must be dismissed.
"Some Arguable Merit"
[27] Is not my place to express a view on the merits of the appeal (see R. v Boodram 2015 ONSC 3821 at para.18). Rather, following McPherson, my task is to determine whether "the appeal has so little chance of success that no one could possibly believe that it could succeed…".
[28] Given the shifting burden that may arise in these cases and the evidence, rather the lack of evidence, regarding the condition of Mr. Matthews, I cannot conclude that the "appeal has so little chance of success that no one can possibly believe that it could succeed." In saying this I am mindful that I have not heard all of the evidence. The "booking room" video is not in evidence in this application and that evidence may have some bearing on determining the appropriateness of post-arrest detention.
[29] While a stay of conviction may not be an appropriate remedy in these circumstances, if the Charter application succeeds other relief may be appropriate.
"Hardship"
[30] "Mere inconvenience does not constitute hardship." Wang at para. 3. Section 261 "does not contemplate relief against inconvenience, but only relief in the exercise of discretion, which the case law suggest ought to be exercised only in circumstances where real hardship is being experienced." Boodram at para. 32.
[31] This is not a case where the driving prohibition results in loss of employment. Mr. Matthews is still able to attend at his regular employment. There was no evidence to assess the alleged hardship arising from Mr. Matthews’ position as a delivery driver with the family run business. The obligation was upon the applicant to satisfy me, on a balance of probabilities, that there was hardship and I conclude that he has failed to do so.
Disposition
[32] For reasons given, the application for a stay of driving prohibition pursuant to s. 261 of the Criminal Code is dismissed.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: October 8, 2015
COURT FILE NO.: CR-15-0042-AP
DATE: 2015-10-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Spencer Matthews,
Applicant
REASONS ON APPLICATION TO STAY
Newton J.
Released: October 8, 2015
/mls