CITATION: R. v. Bacci, 2016 ONSC 787

COURT FILE NO.: CR-13-220-00

DATE: 20160208

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MEGAN BACCI Applicant

COUNSEL: B. Bhangu, for the Respondent (Crown) P. Cooper, for the Applicant

HEARD: September 28 and December 2, 2015

REASONS FOR JUDGMENT

J.R. McCarthy J.

[1] The Applicant applies under ss. 7, 8, 9, and 10 of the Canadian Charter of Rights and Freedoms for an order excluding evidence under ss. 24(1) and 24(2) of the Charter.

[2] On May 19, 2012, Police Constable Gowlett (PCG), Police Constable Laurin (PCL), and Police Constable Chiasson (PCC) of the Ontario Provincial Police attended at the scene of a single motor vehicle accident on Simcoe County Road 6 in Tiny Township (“the scene”). PCG arrived after both PCL and PCC.

[3] Upon arrival, PCG was approached by two witnesses who had observed the motor vehicle cross over the centre line six to seven times before it left the roadway and flipped over into a ditch. The witnesses added that they had pulled their own vehicle to the side of the roadway in order to avoid the vehicle in question. PCG then approached PCC and advised her of what the witnesses had said. In turn, PCC advised PCG that PCL had taken the Applicant to PCL’s cruiser because PCC had detected an odour of alcohol on the Applicant’s breath. PCG then attended at PCL’s cruiser where she found the Applicant sitting in the back seat of the cruiser. The rear door to the cruiser was open and the Applicant’s legs remained outside the vehicle. PCG could smell an odour of alcohol on the Applicant: the Applicant’s eyes were glossy and slightly bloodshot. PCG arrested the Applicant at 8:39 p.m. and read the Applicant her rights shortly thereafter. PCG testified that her reasonable and probable grounds for arresting the Applicant were: a) that the Applicant had identified herself as the driver; b) her own observation of the Applicant’s glossy and bloodshot eyes; c) the odour of alcohol detected on the Applicant; d) the movement of the vehicle as described by the witnesses; and e) the fact that the motor vehicle accident occurred.

[4] PCC was first on the scene. She was approached by the Applicant, who, without any demand or question from PCC, surrendered her driver’s license and advised PCC that she had been the operator of the motor vehicle. During a brief conversation that followed, the Applicant divulged to PCC that she had consumed one or two alcoholic drinks. PCC detected the smell of alcohol on the Applicant’s breath. PCC conveyed the information that she had to PCG before turning her attention back to the other occupants of the vehicle, one of whom had sustained serious injuries.

[5] PCL could not recall whether she took the Applicant over to her cruiser on her own initiative or at the direction of another officer. She could not recall what she might have said to the Applicant that caused the Applicant to follow her to the cruiser. Normally, if the Applicant had not been under arrest, she would be left sitting inside the cruiser with the door of the cruiser open. When PCL was asked what she would have done had the Applicant attempted to leave the scene, PCL responded that she would have probably gone after the Applicant to inquire why she was leaving. PCL was at the scene for only five minutes. She took the Applicant to the Midland Police Service. The Applicant complied with the demand for two breath samples.

The Applicant’s Position

[6] The Applicant contends that the actions of the police resulted in infringements of her Charter protected rights under ss. 7, 8, 9, and 10. In particular, the Applicant provided the statement that she was driving the vehicle believing that she was compelled by law to do so. The law is clear that statements made under statutory compulsion are inadmissible at trial as such admissions would violate s. 7 of the Charter.

[7] In addition, PCG arrested the Applicant without taking into account the entirety of the circumstances. Her subjective belief that the Applicant was operating the vehicle while impaired was not objectively reasonable. The arrest was made in violation of s. 9 of the Charter and the ensuing breath tests were conducted in violation of s. 8 of the Charter.

[8] Finally, the control exercised by the police over the Applicant, in separating the Applicant from the accident scene and escorting her to a police cruiser in circumstances where she would not have been permitted to leave, amounted to detention. Accordingly, the Applicant was entitled to be made aware of her rights under ss. 10(a) and 10(b) of the Charter. The failure by the police to do so in a timely fashion amounts to a Charter violation.

[9] The remedy sought by the Applicant under ss. 24(1) and 24(2) of the Charter is the exclusion of the statutorily compelled statements made by the Applicant and the evidence procured following the arbitrary detention of the Applicant, including but not limited to the breath test readings.

The Position of the Crown

[10] The Crown states that the evidence does not support a finding that the statements made by the Applicant were statutorily compelled. The Applicant did not testify. Accordingly, the court is left without any evidence of her state of mind at the accident scene. This absence of subjective evidence is fatal to the application. The court cannot infer that the Applicant held an honest and reasonable belief that she was required to report the accident or any details of it. There is no evidence to support a finding that the Applicant was under any kind of pronounced psychological or emotional distress that might have left a reasonable person feeling compelled to provide information.

[11] The Crown contends that the combination of factors considered by PCG was ample to support reasonable and probable grounds to arrest the Applicant for impaired driving. The police cannot be expected to build up a prima facie case prior to proceeding with an arrest. Nor should the reasonable and probable grounds test be conflated with the more onerous requirement to prove guilt beyond a reasonable doubt in order to secure a conviction.

[12] Finally, the constitutional rights recognized by ss. 9 and 10 of the Charter were not engaged in the circumstances of this case until the arrest was formally made. The police cannot be said to detain, within the meaning of these sections, every suspect they interview. A certain measure of investigative detention is permitted, and even required, without it rising to the level of detention for the purposes of ss. 9 and 10.

The Law

[13] The Supreme Court of Canada’s decision in R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, is the governing authority on self-incriminating statements made under compulsion. This rule against self-incrimination has two key purposes: “to protect against unreliable confessions and to protect against abuses of power by the state” (at para. 43). The court also laid out the test for compulsion: whether, at the time the accident was reported by the driver, the driver held an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given (at para. 75). That test has been held to apply to the relevant provisions of the Ontario Highway Traffic Act, R.S.O. 1990, c. H.8, by the Court of Appeal for Ontario in R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561.

[14] Reasonable and probable grounds to arrest or to search have both a subjective and an objective component. The subjective component amounts to an actual or honest belief that the suspect committed an offence or that evidence can be seized relating to the commission of an offence. In reviewing the objective component of reasonable and probable grounds, the question is whether the officer’s opinion was supported by the objective facts: R. v. Berlinski, 2001 24171 (ON CA), 9 M.V.R. (4th) 67, at para. 3.

[15] The Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20, has differentiated between “detention” by the police for a limited purpose of interviewing or identifying and “detention” of the kind that engages rights guaranteed under the Charter. Charter rights are not engaged by delays that involve no significant physical or psychological restraint (at para. 19). The court went on to conclude that police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all of the circumstances that the individual is connected to a particular crime and that such detention is necessary (at para. 45). The Court of Appeal for Ontario has stated that investigative detentions are justified if the detaining officer has some articulable cause for detention: R. v. Simpson, 1993 3379 (ON CA), 12 O.R. (3d) 182, at pp. 200-201.

Analysis

[16] I am not persuaded that the statements by the Applicant at the scene were made under compulsion.

[17] In R. v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641, at para. 7, the court set out three things that an Applicant must establish to come within the protection against self-incriminating compelled statements afforded by the SCC in White:

1. That she was in fact compelled by statute to provide a report.

2. That the statements she made were a “report” within the meaning of the compelling statute.

3. That she gave her report in the honest and reasonable belief that she was compelled by statute to do so.

[18] First, like the court in Parol, I find that it would be a stretch beyond the breaking point to consider the exchange between the Applicant and the officers as the making of a report within the meaning of a statute. It does not fit the ordinary meaning of the word “report” or the concept of reporting.

[19] Second, the Applicant failed to testify in this case. Unlike in Soules, where the court was afforded an opportunity to assess the evidence of the Applicant, there is no such evidence here. There is no evidence of what the Applicant understood the law to be or that she felt compelled to abide by the law.

[20] Third, I am unable to infer from the evidentiary record before me any reasonable belief on the part of the Applicant that she felt compelled by law to give a statement.

[21] Fourth, there is nothing in the action taken by the police in the very short period between the time they came on the scene and the time of the Applicant’s utterance that would amount to any degree of psychological, emotional, or physical pressure on the Applicant to offer up a statement or provide information.

[22] Fifth, the Applicant volunteered the information that she was the driver and produced her driver’s licence to PCC without any prompting or persuasion on the part of the officer. It would be highly speculative to embark on an inquiry as to why the Applicant chose to conduct herself in that fashion. It may simply have been that she was a cooperative and forthcoming person. I cannot, however, conclude from evidence that she felt compelled to give a statement or to provide information to police.

[23] I have concluded that the utterances made by the Applicant and the handing over of her driver’s licence were in no way compelled. The Applicant has failed to meet the onus on her in this regard. There was no infringement of her s. 7 Charter right.

[24] I am satisfied that the police also had reasonable and probable grounds upon which to arrest the Applicant on suspicion of impaired driving. I find that PCG’s notes are consistent with her making the arrest only after reasonable and probable grounds were established. I accept PCG’s evidence that her writing “the arrest” at the top of her notes does not translate into a decision to arrest the Applicant before she detected the odour of alcohol on the Applicant or made note of the Applicant’s bloodshot and glossy eyes. I find that the constellation of a number of facts known to PCG just before the arrest amounted to reasonable and probable grounds. Those facts were:

• that there had been a single vehicle accident;

• that the vehicle involved had been observed to swerve across the centre line six to seven times by witnesses in another vehicle;

• that the Applicant acknowledged being the operator of the vehicle in question;

• that PCC had detected the odour of alcohol on the Applicant and reported that to PCG;

• that PCG also had detected the odour of alcohol on the Applicant; and

• that PCG had noticed glossy and bloodshot eyes on the Applicant during their brief interaction.

[25] I find that PCG’s subjective belief that she had reasonable and probable grounds to make an arrest for impaired driving was objectively supported by the constellation of observations made and information gathered at the scene. I would distinguish the authorities cited by the Applicant dealing with indicia of impairment (R. v. Tavone, 2007 32676 (ON SC); and R. v. Landes, 1997 11314 (SK QB), 161 Sask. R. 305); these cases pertain to trial decisions and the requirement for proof beyond a reasonable doubt. In my view, a common sense assessment of the constellation of facts at the scene of this accident would have led any reasonable person in the officer’s position to conclude that the driver was likely impaired. While some indicia of impairment were not exhibited by the Applicant (i.e. slurring and stumbling), such detracting factors would not, in the entirety of the circumstances, serve to diminish the significance of the other factors present at the scene, and the logical and compelling inference of impaired driving that flowed from them.

[26] I have concluded that there was no arbitrary detention under s. 9 of the Charter. The officer had reasonable and probable grounds to make the arrest for impaired driving. The subsequent demand and taking of the breath sample that followed was entirely justified and reasonable. There was no infringement under s. 8 of the Charter.

[27] Finally, I have concluded that there was no denial of rights under ss. 10(a) or 10(b) of the Charter. There is insufficient evidence upon which to conclude that the Applicant could reasonably have concluded that her freedom was restrained. The Applicant did not testify; I am unable to infer her state of mind from the facts before me.

[28] The brief investigative detention was entirely justified given that the police were investigating a potential crime scene involving injured persons. PCC in particular was still in the midst of assisting other persons when the Applicant walked over to the cruiser with PCL. The time between the Applicant’s contact with the police, the arrest, and the reading of her rights was very short (approximately five minutes). There is no evidence that the Applicant was forcibly escorted or detained. Allowing the Applicant to sit down in the police cruiser with her feet remaining outside the vehicle was practical and courteous. She was not handcuffed or placed in the back of the police cruiser with the doors closed. The fact that an officer would have restrained the Applicant had she attempted to depart the scene does not mean that she was detained for the purposes of Charter rights: R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at paras. 36, 37. There is no evidence of intimidation or issued warnings on the part of the police. I have therefore concluded that the Applicant was not detained until she was arrested by PCG at approximately 8:39 p.m. at which time s. 10 rights were provided to her. No s. 10 rights were engaged prior to that point.

Disposition

[29] For the reasons set out above, I have concluded that the Applicant experienced no infringement of her Charter rights.

[30] The Application is therefore dismissed.

J.R. McCARTHY J.

Released: February 8, 2016

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.