minicounsel

COURT FILE NO.: 13-8928 DATE: 20160927

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Crown/Respondent – and – LIAM MCCANN Appellant

Counsel: Matthew Collins, for the Crown/Respondent Mark Ertel, for the Appellant

HEARD: August 24, 2016

BEAUDOIN J.

Overview

1This is an appeal from a conviction for operating a motor vehicle with the quantity of alcohol exceeding 80 mg in 100 ml of blood. The issue on this appeal is whether or not there was an arbitrary detention of the Appellant within the meaning of s. 9 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [“the Charter”]. If there was arbitrary detention, should the evidence seized be excluded pursuant to s. 24(2) of the Charter?

2It is conceded that this appeal is pursuant to s. 686(1)(a)(ii) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 and that the judgment of the trial judge should be set aside because of a wrong decision on a question of law or a question of mixed fact and law. The Appellant concedes that the standard of review is one of correctness and that he has the onus of proof.

Background

3The factual framework is set out in the trial judge’s Reasons for Judgment. On January 1, 2013, at around 5:00 a.m., Constable Bonin of the Ottawa Police Service was dispatched to 148 Forward Avenue as a result of a call from dispatch that a witness had heard a male and female yelling in a vehicle and an engine revving. There was no description of the motor vehicle provided by the witness.

4Constable Bonin and Constable Laurette arrived on the scene in separate motor vehicles around 5:09 a.m. Constable Bonin attended at 148 Forward Avenue and spoke to the witness who confirmed what she had said to dispatch. Constable Bonin drove around 143 Forward Avenue as this was the address that the witness had indicated the noise was coming from. He did not hear anything.

5At 5:15 a.m., Constable Bonin and Constable Laurette were about to leave the scene when a vehicle pulled up behind Constable Bonin’s cruiser. Due to the snow conditions, there was only one lane of traffic on Forward Avenue. 143 Forward Avenue is a multi-unit residence and has a U-shaped driveway that proceeds from Forward Avenue around the rear of 143 Forward Avenue, and returns to Forward Avenue. Constable Bonin drove his cruiser ahead and turned into a driveway to the left of 143 Forward Avenue. He did this to get out of the way of the vehicle behind him and to determine where that vehicle was going in the event it could be connected to the complaint he was investigating. This was the only vehicle that Constable Bonin had seen while attending at this location.

6As Constable Bonin pulled into the left driveway, he could see the other motor vehicle pulling into the right driveway. As it was very quiet on the street at this time, Constable Bonin thought this might be the car relating to the complaint as it was driving into the parking lot where the witness had described the car to be. He thought it might be the persons returning to that place. As a result, Constable Bonin decided to drive around the building to deal with the driver to see if he was the person involved in the complaint.

7Constable Bonin observed the vehicle park at the rear of the building. There were two to three feet high snow banks and he observed a motor vehicle driving at a moderate pace and the front of the vehicle collided with the snowbank and went up one to two feet into the snowbank. The collision with the snowbank was such that Constable Bonin thought that the driver might be impaired. He considered that it was in the early morning hours after New Year’s Eve and that people who consume alcohol argue more. His evidence was that he had two separate trains of thought as to why he wished to speak to the driver; that is, the complaint of the witness and the possible impaired driving. (The trial judge later concluded that he was not satisfied that this was a dual-purpose stop.)

8At 5:17 a.m., Constable Bonin got out of his cruiser and walked to the driver side of the vehicle. As he approached, he observed the passenger get out of the front passenger seat and he made a comment to the officer that “It’s okay. It’s my car.”

9Constable Bonin noted that the engine was running and the brake lights were on. He walked up to the car and opened the driver’s door because he said he wanted a clear view of everything that the driver was doing for his own safety. If the vehicle went into motion, Constable Bonin wanted to be able to do something about it such as reach in and turn off the vehicle or get the driver out of the vehicle.

10Constable Bonin observed the Appellant to be in the driver’s seat and asked for the driver’s license, ownership and insurance as this was his usual practice. The officer said that he normally informs the driver of the reasons. But he cannot recall if he did it or not. He felt he was dealing with the disturbance compounded by an impaired and he was keeping an open mind.

11The Appellant did not physically move to get the documents. The vehicle suddenly lurched backwards but stopped as it was in “Park.” The officer repeated his request for the three documents and the Appellant provided his driver’s license. His movements were slow and deliberate. Constable Bonin examined the driver’s license and confirmed it was the Appellant’s picture on the license.

12The officer then observed a clear odour of alcohol from the Appellant’s breath. He asked the Appellant if he had had any alcoholic beverages to drink and the Appellant said “A few.” Based on these factors, Constable Bonin had a reasonable suspicion to ask the Appellant to take the approved screening device test.

13In cross-examination, Constable Bonin agreed that he did not ask the Appellant anything about the prior disturbance and a possible assault. He stated that once he smelled alcohol, he went directly to the issue of impaired driving. Further, in cross-examination, Constable Bonin agreed that he was not able to stop the driver pursuant to the Highway Traffic Act since the vehicle was on private property. He also agreed that he had detained the vehicle until he did his investigation. It was his evidence that he said that police can speak to people. The officer stated that, even if the Appellant had tried to leave, he might have pursued him. Constable Bonin said he was going to detain the Appellant whether or not the Appellant hit the snowbank. He believes he is bound to check for people to deal with victims and he was trying to find a victim of potential violence.

14Although he did not believe that an offence has been committed based on the call from the witness, he was relying on his other duties to see if there was a victim. He felt that he could not just leave as this would be neglectful. He was going to detain the Appellant in order to check out a possible domestic assault. He distinguished what he did from that of investigative detention which is searching for a person who may have committed a crime.

15Constable Bonin requested that the Appellant go to the cruiser, and at 5:17 a.m., Constable Bonin read the approved screening device demand. The Appellant failed the approved screening device test and he was arrested for the charge of over 80. He was searched and there was a closed pocket knife found in his right front jeans. The Appellant was taken to the station where he spoke to counsel and subsequently provided breath samples of 150 and 140.

The Trial Decision

16The trial judge determined that the issues in the Charter application were as follows:

who bears the onus of proof under a s. 8 and 9 Charter application;
what was the evidence established as to the reason why Constable Bonin interacted with the Appellant;
was there a detention as envisaged by s. 9 of the Charter;
if there was a detention, was it an arbitrary detention;
if there was an arbitrary detention, what, if any, evidence is to be excluded pursuant to s. 24(2) of the Charter.

17The trial judge determined that the onus was on the Crown to establish that the detention and search were lawful on a balance of probabilities. He was not satisfied that the Crown had met the onus to establish that there had been a dual-purpose stop; with one purpose being to investigate the prior complaint, and the second to investigate a possible impaired driver.

18The trial judge then went on to say:

The next issue to be determined is whether or not the Appellant was detained by Constable Bonin. The laws surrounding the interaction of police with members of the public illustrates the tension between two valid principles. On the one hand, the police, as part of their duties, are obligated to investigate occurrences in order to protect the public. On the other hand, the public is entitled pursuant to the Charter to be protected against arbitrary detention and warrantless searches.

Clearly as part of their duties, the police are entitled to speak to members of the public without detaining them. Although an individual may be detained in the sense that they are delayed or kept waiting, they are not detained as contemplated by the Charter. However, there are limits on the ability of the police to speak to the public in accordance with the provisions of the Charter.

Unfortunately, there are no clear bright line (sic) for trial courts to follow to establish when permissible conduct by the police becomes impermissible. Each of these cases is a fact-driven exercise, in the case before me is no different…

19He reviewed the case law as set out in R. v. Suberu [2009] 2. S.C.R. 460 and R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 and concluded that Constable Bonin approached the Appellant to make general inquiries regarding the prior complaint and that he had a reason for wishing to speak to the Appellant. He was investigating whether the Appellant, who had driven to the location where the witness had indicated that the prior occurrence had taken place, was involved in the prior occurrence. He concluded that this was a case where the officer was making general inquiries regarding a particular occurrence as opposed to singling out the Appellant for a focused investigation. He further concluded that Constable Bonin was entitled to speak to the Appellant without invoking the powers given to him pursuant to an investigative detention. The fact that no crime had taken place was not significant on these facts.

20He concluded that the encounter was brief, lasting one to two minutes. He noted no forceful language and no physical contact between the officer and the Appellant. He also thought it was significant that Constable Bonin did not stop the Appellant’s motor vehicle as it was being driven. He concluded that had this had occurred, the officer would have detained the Appellant. In this case, Constable Bonin approached the Appellant who was seated in a stopped motor vehicle.

21He also considered the fact that there was a request by the officer for identifying documents and noted that in Suberu, a similar request was made by the officer and that the Supreme Court of Canada did not attach any significance to that fact.

22He further held that an objective test had to be applied in order to determine whether a reasonable person would have concluded by the reason of the actions of the officer that the Appellant had no choice to comply. Since the Appellant did not testify, the Court had no evidence from the Appellant whether he believed he could not leave. The evidence was limited to that of the police officer who testified in cross-examination that he considered the Appellant to be detained until he did his investigation.

23Appellant’s counsel had argued that Constable Bonin had determined that he intended to detain the occupants of the motor vehicle; had gone to the motor vehicle, opened the door and therefore took physical control of the movement of the occupants; and since the police officer considered the Appellant to be detained, there was a detention.

24The trial judge disagreed with that submission and cited this passage in Grant at para. 32:

The objective nature of this inquiry recognizes that the police must be able to know when a detention occurs, in order to allow them to fulfil their attending obligations under the Charter and afford the individual its added protection. However, the subjective intentions of the police are not determinative….

25Accordingly, the trial judge gave no weight to Constable Bonin’s expressed belief and concluded that it was not determinative of the issue. He concluded that the time frame was relevant and held that the Appellant was not detained within the meaning of s. 9 of the Charter until such time as Constable Bonin asked the Appellant to accompany him to the police cruiser. The trial judge added:

This was a brief interaction between the Appellant and the police that was the result of police investigating a complaint. It was an exploratory investigation. There was no forceful questioning of the accused by the officer and there was no evidence of the accused’s personal circumstances to conclude that he was other than being delayed by the police.

Appellant’s Position

26The Appellant contends that the trial judge erred in determining the issue on the basis of psychological detention when the Appellant was in fact detained. The Appellant further submits that the detention was an investigative detention, but since the officer was not investigating an offence but whether one that might have been committed, the detention was unlawful and arbitrary.

27As a result of the breaches of s. 9, 10(a) and 10(b) of the Charter, the Appellant argues the breath test results should be excluded on appeal pursuant to s. 24(2) of the Charter.

28In support of his argument that he was actually detained, the Appellant submits there was a restraint on his liberty when he was required to comply with the demand or direction – to produce his license, ownership and insurance. He was not free to leave. The Appellant further emphasizes that this is not a case about the subjective intention of the police officer; it is about the police officer’s subjective belief.

29The Appellant maintains that while it makes sense that the subjective intention of the officer is not determinative of the detention issue, it does not follow that an officer who says that he detained a subject did not detain him because of the unreasonable belief of the detainee.

30The Appellant further submits that investigative detentions are permitted where officers do not have reasonable grounds for arrest. In this case, the detention was not to investigate a crime as no crime had been reported. While the police have a duty to investigate potential crimes and events and to ask questions of people, that duty does not empower the police to detain.

31The Appellant relies on the evidence of Constable Bonin that he believed he had detained or stopped the Appellant. He argues that, in most cases, police officers testify that they did not believe that their actions constituted a detention within the meaning of s. 9 of the Charter.

The Respondent’s Position

32The Respondent’s position is that the Appellant’s vehicle was never stopped by the police, nor was he detained (unlawfully or otherwise). At most, as found by the trial judge, this was a case of the police “making general inquiries about a particular occurrence…” that turned into the Appellant’s arrest for impaired driving. If I am of the view that the trial judge erred and that the Appellant’s Charter rights were violated, the Respondent submits that the evidence should not be excluded because to do so would bring the administration of justice into disrepute.

Analysis

33Since the Appellant relies on Constable Bonin’s words and his belief at the time of his interaction with the Appellant, it is necessary to review the transcript of the proceedings:

34As he was examined in chief, Constable Bonin said at pp. 24 -26.

A. Well I walked up to the door and opened the door myself.

Q. Why did you open the door?

A. I opened the door because at that point if this was our disturbance – part of our disturbance then I wanted to have a clear view of absolutely everything that the driver was doing, and that’s for my own safety, and on the other hand the vehicle was still perched up on the snowbank a few feet.

Q. Okay

A. When the vehicle was going to go back in motion and I wanted to be in a position to do something about that.

Q. Like what?

A. Had the vehicle got back in motion?

Q. Yes

A. Well it depends on the circumstance, that if I am there engaging with someone about a disturbance or potentially an impaired driver and they try to get away, so to speak, then that’s in the area of my own safety being at risk and I might reach in and turn the vehicle off, I might try to get the driver out, if I had still been in my car I might have ended up in pursuit.

Q. All right. So you – you opened the door. Tell us what happens next.

A. Yes. I opened the door and found the accused in the driver’s seat. So I asked him to produce his driver’s license, ownership and proof of insurance.

Q. Any particular reason for that?

A. It is – it is what I ask every driver if I am going to be dealing with them. I typically inform them of the reason for the stop as well. I do not recall what words are used to – to tell him about this reason.

Q. Was this a stop in your mind?

A. In my mind I was still dealing with the disturbance, potentially compounded by an impaired driver based on circumstance, but I had – I had a suspicion, I guess, that that’s what was taking place.

Q. When you say that what do you mean?

A. That the person that had collided that the snow bank might be intoxicated from alcohol and drugs.

Q. All right.

A. But at that point my mind is still open, like it is – you know, it could have been a person that - whose car slipped into the snowbank, for example. There’s two separate issues in my mind. There’s a disturbance and there’s an impaired driver.

Later, in cross examination he said this: p. 80

Q. Right. Okay. And so your decision as you went in the other driveway, and the second driveway as he described it, knowing there’s a U-shape there, your decision was that you are going to head him off as he came around the U and find out whether he’s involved in this thing are not.

A. That’s right.

Q. Okay. So that decision to, I guess, stop his vehicle or investigate in some way, it turns out you did not have to stop the vehicle but you had determined that you were going to, right?

A. That I was going to talk with him.

Q. Yeah. And you’d have to stop the vehicle to talk to them if it kept moving, right?

A. yes

At page 84, the cross-examination continued;

Q. Yes. Okay. And the reason why he wanted to intercept it was so you could determine whether the occupants or occupants of that vehicle were in some way connected with the call.

A. That’s right.

The cross-examination continued at p. 92.

Q. In your mind, if it is not a Highway Traffic Act stop because its on private property what are required to have as a basis for stopping and investigating someone on private property?

A. A suspicion - for detention it’s a reasonable suspicion that there was an offence committed and that the party that you are detaining is connected to that offence.

Q. Okay.

A. I do not know if I have understood your question correctly though.

Q. Okay. The reason why you went over to that car intending to take control of that person and investigate him was because you had a reasonable suspicion that an offence had been committed and that he was involved, right?

A. I never said take control of that person

Q. Wait a second. When you went over to the car you weren’t taking control of that situation?

A. I guess in essence.

Q. Yeah. The - he was not going anywhere until you finished your investigation, right?

A. Yes, okay. Maybe in that sense, but not custody.

Q. Yes. Yeah. You did not arrest him.

A. Right

Q. He was detained. He was not going anywhere until you did your investigation, right?

A. That’s right.

Q. Okay. And in order to do that, in order to detain someone in your mind you need a reasonable suspicion that an offence has been committed and that the person who you are detaining is involved.

A. For a detention, like on an investigative basis, investigative detention yes. And my intention that time wasn’t that, it was to ask questions and speaking to someone, you know, I can speak to people - I speak with people all the time without them being detained.

Q. Okay. In this particular case though, the person was detained.

A. Yes. After the snowbank incident, especially, yes.

Q. So…

A. Even if he had taken off, I am agreeing with you, I am just thinking. Even if he had taken off, based on how silent that area was and how - how there was no description of the vehicle with the occupants in a car, yeah, I might have - I might have pursued.

Later at p. 98, he said this:

Q. Okay. But in your mind under – under either scenario this is not an investigative detention strictly speaking because you do not really have a reasonable suspicion that any offence under either heading has been committed, you just going to find out whether or not it has.

A. That’s right.

Q. Yeah.

A. My intention was not to - I mean, the debate could be about whether or not I would have pursued this person had they try to leave. I would have because I thought it was connected to disturbance, but after seeing the snowbank I thought it was potentially an impaired driver. But I did not, in my mind, detain him in an arrest sense of the word. That is the way it is usually characterized, for us anyhow, is that investigative detention is something that is more overt and something that’s less subtle. We are talking about you know, less than a minute interaction of my thoughts from two years ago.

(Emphasis added)

The Law

35The seminal decisions on the right to counsel in the case of an investigative detention are Suberu and Grant. The facts in Suberu were these:

The police constable responded to a call about a person attempting to use a stolen credit card at a store. He was advised that there were two male suspects. The constable entered the store and saw a police officer talking to an employee and a male customer.
Mr. Suberu walked past the constable and said “He did this, not me, so I guess I can go.” The constable followed Mr. Suberu outside and said “Wait a minute. I need to talk to you before you go anywhere”, while Mr. Suberu was getting into the driver’s seat of a minivan.
After a brief exchange, the constable received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card at another store earlier that day.
The description and the licence plate number both matched that of the van in which Mr. Suberu was sitting. The constable also saw shopping bags between and behind the front seats.
At this point, he decided that he had reasonable and probable grounds to arrest Mr. Suberu for fraud. He advised Suberu of the reason for his arrest and cautioned him as to his right to counsel.
Mr. Suberu brought an application under s. 24(2) of the Charter seeking the exclusion of any statements made by him and of the physical evidence seized at the time of his arrest and argued that he was detained as soon as he was told to “wait” and was engaged in questioning by the constable.

36In deciding when a detention arises within the meaning of s. 9 of the Charter, the Supreme Court said this:

[23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows:

“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the Appellant was detained by the police when they searched him. We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so. [Emphasis added; at para. 19.]

[24] As explained in Grant, the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

37Although the decision pre-dates Mann and Suberu, in R v. Calder (2004) 47 M.V.R. (4th) 20 our Court of Appeal held:

The officer needed no legal authority to approach the Appellant while he was sitting in his vehicle in the public parking area and he needed no legal authority to speak to the Appellant. There is no evidence upon which it could be said that the Appellant was detained by the officer within the meaning of detention as explained in R. v. Therens (1985), 18 C.C.C. (3d) 481 (SCC).

38This reasoning was recently adopted by Laliberté, J. of this Court in R. v. Levesque, 2013 ONSC 5125, [2013] O.J. No. 3783.

Analysis

39In this case, Constable Bonin was in the neighbourhood responding to a complaint of a disturbance which included the sound of an engine revving. He was about to leave the vicinity when he observed the Appellant’s motor vehicle. He saw the vehicle enter the parking lot of the premises where the disturbance complaint originated.

40The Appellant was not stopped by Constable Bonin. He had already stopped and parked his vehicle in a space of his own choosing with no involvement or control by the police. I place no significance on Constable Bonin’s response that he might have pursued the vehicle if it had driven away.

41As conceded at trial by Constable Bonin and as found by the trial judge, the Highway Traffic Act had no application to the parking lot where the interaction occurred. The Appellant was under no legal obligation to provide his documentation to Constable Bonin. As such, and as in Suberu, where Mr. Suberu was stopped on his way to his car, the Appellant would not have been subject to any legal sanction for refusing to comply with the officer’s request.

42As noted by the trial judge, there was no forceful language used by the police officer nor was there any physical contact between the officer and the accused.

43In this case, the vehicle was stopped with its front end two feet up on a snowbank with its engine running. Constable Bonin had a reason to question the driver as a person who might have been involved in the disturbance complaint he was responding to. Having regard to the position of the vehicle, Constable Bonin testified that he opened the door to have a better view of the situation and for his own personal safety. The trial judge correctly concluded that Constable Bonin had not taken control of the vehicle.

44The Appellant relies heavily on Constable Bonin’s admission in cross-examination that he had detained him and that the trial judge erred in considering whether or not there was a psychological detention when in fact he had been actually detained. The trial judge dismissed the arguments made at trial with regard to what Constable Bonin may have said.

45Although the words “stopped” and “detained” may have been adopted by Constable Bonin in cross-examination, I conclude that Constable Bonin’s admissions were not as unequivocal as the Appellant maintains and Constable Bonin was alive to his right to momentarily delay someone to ask questions. The trial judge correctly concluded that Constable Bonin was entitled to speak to the Appellant without invoking his powers given to him pursuant to an investigative detention and the fact that no crime had taken place was of no significance.

46The trial judge relied on the facts in Grant where the accused was walking on the sidewalk of a Toronto street at midday when his manner and clothing attracted police attention. The police officer stopped Mr. Grant and asked him to produce identification. There was further interaction with Mr. Grant that led to his ultimate arrest, but the Supreme Court held that even though there was no crime being investigated, the early questioning did not constitute a detention within the meaning of s. 9.

47The trial judge’s analysis was the correct one. The judge first embarked on the correct legal analysis in determining whether or not the Appellant was physically restrained within the meaning of s. 9 of the Charter. He only embarked on a line of inquiry as to whether the Appellant was psychologically detained when it became evident to him that such an inquiry was warranted on the evidence before him. He then went on to a consideration of the reasonable person analysis and the three factors cited in Grant at para 44:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

48The trial judge did not err in finding that the initial part of Constable Bonin’s encounter with the Appellant was a general inquiry regarding a particular occurrence as opposed to singling out the Appellant for a focussed investigation. Having regard to the investigative analysis set out on Grant and Suberu, I conclude that the trial judge correctly decided that there had been no detention which would have triggered the Appellant’s right to counsel.

Section 24(2) of the Charter

49Although there was no detention within the meaning of s. 9 of the Charter, I am satisfied that the impugned evidence, namely the breath sample results, should not be excluded pursuant to s. 24(2) of the Charter because to do so would, on balance, bring the administration of justice into disrepute.

50Once again, I turn to the Grant decision and the three factors that must be considered whether evidence should be excluded.

(a) Seriousness of the Charter-Infringing State Conduct;

(b) Impact on the Charter-Protected Interests of the Accused

(c) Society’s Interest in an Adjudication on the Merits

Seriousness of the Charter-Infringing State Conduct;

Seriousness of the Charter-Infringing State Conduct

51The Appellant argues that allowing police officers to detain persons in circumstances would establish a low threshold for allowing police officers to arbitrarily detain someone. I turn to the Calder decision where our Court of Appeal concluded that a police officer needed no legal authority to speak to someone sitting in a vehicle parked in a public place. That decision would place the threshold even lower than it is in this case. Here, Constable Bonin was responding to a complaint of a possible disturbance in the early hours of a New Year’s morning. He observed the only vehicle in the vicinity of where the complaint originated. The vehicle was parked in a public place and had climbed a snow bank. Constable Bonin had a legitimate reason to make inquiries of the driver. He opened the vehicle door to get a better view of the situation and for his own safety. This episode lasted a little more than a minute.

52I am satisfied on the evidence that Constable Bonin was acting in good faith. There are no clear “bright lines” to determine when a person has been detained. This is not a case of wilful, flagrant or deliberate or even reckless intrusion on the Appellant’s Charter rights. At most, it was a brief of mistake in an otherwise faultless investigation, arrest and procurement of breath samples. There was no issue with either of the breath demands and the Appellant did speak to counsel before providing the incriminating samples of his breath.

Impact on the Charter-Protected Interests of the Accused

53The Appellant was momentarily delayed by the actions of Constable Bonin for just over a minute. The Appellant was operating a motor vehicle in a public parking lot where the police had just as much right to be there as he did. Accordingly, the Appellant’s privacy rights in a public place, having just performed a regulated activity were not high.

Society’s Interest in the Adjudication of the Case on its Merits

54The impugned evidence, the samples of breath, was extremely reliable and it was crucial to the Crown’s case. This is an offence that society has a significant interest being prosecuted on its merits. It was not obtained in such manner that impacted the Appellant’s rights to the extent where exclusion is the only thing left to prevent the administration of justice falling into disrepute.

Conclusion

55This Appeal is dismissed.

Mr. Justice Robert N. Beaudoin

Released: September 27, 2016