Court File and Parties

Court File No.: CR-17-1774 Superior Court of Justice

Endorsement Citation: R v. Patel 2019 ONSC 1046

Appellant: Nilesh Patel Counsel: Kenneth Anders

Respondent: Her Majesty the Queen Counsel: Brian McCallion

Date: January 7, 2019

Endorsement

[1] The Appellant was convicted of the offence of refusing to provide a sample of his breath for analysis by an approved screening device by Bourque J. on April 26, 2018 after a two day trial. His sole ground of appeal alleges that the trial judge erred in dismissing his application to stay the charge pursuant to Section 24(1) of the Charter. At trial, he argued that his rights as protected by Sections 7, 9 and 10(b) of the Charter were violated and that the appropriate remedy was a stay of proceedings. The trial judge agreed that the Appellant’s section 10(b) right to counsel was violated but did not find a violation of Section 7 or 9. The Appellant did not seek a remedy under Section 24(2) because there was no causal connection between the breach of his Section 10(b) rights and the obtaining of evidence. On appeal, he submits that the trial judge erred in law in failing to find that the conduct of the police violated his Section 7 and 9 rights. Further, it is his position that the police misconduct was so serious that it justifies a stay of proceedings. In contrast, the Respondent submits that the trial judge correctly applied the law to his factual findings which are entitled to considerable deference on appeal.

[2] On February 11, 2017, the Appellant was operating his motor vehicle in Aurora when he slid on a patch of ice and drove into a ditch. The police were called and two officers responded. The Appellant and his passenger were outside of the car attempting to dig it out. The officers noticed an empty beer carton and beer bottle behind the car. The Appellant’s passenger was, in the opinion of the officers, clearly intoxicated. The Appellant did not appear to be impaired but the arresting officer, Constable Gros detected an odor of alcohol on his breath. As a result, he made a demand of the Appellant to provide a sample of his breath for analysis by a roadside screening device. He directed the Appellant to sit in the back of a police cruiser at approximately 3:32 a.m. The police vehicle was equipped with in car audio which recorded the interaction between the Appellant and the officers. The Appellant refused to provide a sample of his breath and was arrested and read his right to counsel at 3:44 a.m. He was handcuffed shortly thereafter. From that point, he remained handcuffed in the rear of the police vehicle until he was released on a Form 9 appearance notice at 4:38 a.m. When the Appellant was read his rights to counsel upon arrest, he said that he did wish to call a lawyer. He was not given the opportunity to do so while he was in police custody, which the trial judge found was a violation of his Section 10(b) rights.

[3] The Form 9 appearance notice provided to the Appellant states that it was “issued at” 4:00 a.m. It is signed by Constable Gros. However, the Appellant was not actually released from police custody until 4:38 a.m. The audio recording reveals that during the time he was handcuffed in the back of the police cruiser, the Appellant complained repeatedly about being in pain due to the handcuffs. At one point the second officer on scene, Constable Combdon, readjusted the handcuffs but that didn’t seem to bring the Appellant any relief. The trial judge accepted that as a result of being handcuffed, the Appellant had pain for 2 to 3 weeks and bruising on one wrist. He did not seek medical attention.

[4] No meaningful explanation was offered by either police officer for the Appellant’s detention beyond 4:00 a.m. when the Form 9 was ready to be served on him. Constable Combdon testified that the timing of the Appellant’s release was strictly the responsibility of Constable Gros. Constable Combdon described the delay as the unfortunate part of tag-teaming the paperwork. He said that he was not going to release the Appellant and make him walk on a country road in the snow. However, the Appellant’s passenger was on the side of the road and there was no reason the Appellant couldn’t have been released and permitted to join his friend. If the officers were concerned about the conditions, they could have offered the Appellant the option of sitting unhandcuffed in a police vehicle. Constable Gros agreed that the delay in releasing the Appellant was not due to having to wait for the tow truck to arrive. Similarly, Constable Combdon testified that he didn’t believe the Appellant’s release had anything to do with waiting for the tow truck to arrive.

[5] In dismissing the Appellant’s Section 9 application the trial judge said that he was concerned about the delay of 40 to 50 minutes above what would have been reasonable. He attributed that time to the need to arrange for the Appellant’s car to be removed from the ditch and towed. However, both officers testified that was not the reason for the delay. Considering all of the evidence, particularly the fact that the Form 9 states that it was “issued at” 4:00 a.m., I am of the view that the Appellant’s detention from that point onwards was unlawful and in violation of Section 9 of the Charter. He could have and should have been released at 4:00 a.m. The Appellant was unlawfully detained and handcuffed for 38 minutes thereafter.

[6] The Appellant further argues that his Section 7 rights were violated because he sustained injuries as a result of being handcuffed for such a lengthy period of time. He submits that one comment made by Constable Combdon establishes that the police were intentionally inflicting suffering on him. At 4:13 a.m., the Appellant said “please get me out of the cuffs” to which Constable Combdon replied “no, it’s going to take longer now”. At that point, the Appellant was being difficult with the officer by claiming that he hadn’t been driving the car. Constable Combdon agreed that he was frustrated with the Appellant. He was unable to explain what he meant when he said it was going to take longer but testified that he was not trying to punish the Appellant or keep him in handcuffs longer than necessary.

[7] The comment by Constable Combdon and his inability to provide an explanation for it is troubling. However, the trial judge addressed this issue directly in his Reasons for Judgment and specifically rejected the suggestion that the police intentionally caused the Appellant any pain or suffering. He found that the officers could have been more considerate of the Appellant’s needs and taken more steps to relieve his discomfort. Having made those findings of fact, the trial judge correctly applied the law relating to Section 7 of the Charter and declined to find a breach. Further, he stated that even if the conduct of the police amounted to a violation of the Appellant’s Section 7 rights a stay would not have been an appropriate remedy in this case.

[8] On appeal, the Appellant urged me to find that the trial judge erred in failing to conclude that the conduct of the police was deliberate and motivated by an intention to cause the Appellant pain. Findings of fact by trial judges, particularly those based on an assessment of witnesses’ credibility are entitled to significant deference on appeal. As stated by the Supreme Court of Canada in R v. Clark 2005 SCC 2, [2005] S.C.J. No. 4, appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable (at paragraph 9). The trial judge had the benefit of hearing the testimony of all of the witnesses and addressed the arguments raised by the Appellant. I have no basis upon which to interfere with the findings of fact made by the trial judge.

[9] I also agree with the trial judge’s conclusion that the conduct of the police, though less than ideal, does not constitute the type of significant compromise of the Appellant’s right to security that is contemplated by Section 7 of the Charter (see R v. Donnelly 2016 ONCA 988). The injuries suffered by the Appellant are less serious than those suffered by the Respondent, Mr. Ban, in the case of R v. Pan 2012 ONCA 581. During the course of his arrest, Mr. Ban sustained a cut to his forehead, a cut to his ear and bruising to his back and torso. He was treated in hospital and required 11 stitches to close the cut to his forehead. In overruling the finding of the trial judge that Mr. Ban’s Section 7 rights were infringed, the Court of Appeal stated that even accepting the finding that his injuries were serious and foreseeable that was not sufficient to establish a breach. An accused person must demonstrate a “substantial interference with his physical or psychological integrity” to establish that his Section 7 right to security of the person was violated (at paragraph 45). In this case, the injuries sustained by the Appellant fall short of meeting that standard.

[10] Turning to the issue of what remedy is appropriate for the violation of the Appellant’s Section 9 and 10(b) rights, this is not the clearest of cases within the meaning of R v. Babos 2014 SCC 16, [2014] S.C.J. No. 16 such that a stay of proceedings is justified. The facts of this case are similar to those in which people under arrest are over held by the police by reason of their elevated blood alcohol levels. Depending on the circumstances, the decision of the police to keep accused persons in custody for several additional hours has been found to be a violation of Section 9 of the Charter. However, the Courts generally decline to order a stay of proceedings in those cases finding instead that an alternate remedy, such as a reduction in sentence, will suffice (see for example R v. Waisanen [2015] S.C.J. No. 4835 (S.C.J.), R v. Vieira [2016] O.J. No. 5247 (S.C.J.), R v. Price 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.) and R v. Iseler, [2004] O.J. No. 4332 (C.A.)).

[11] The Appellant did not seek a remedy other than a stay of proceedings. It should nevertheless be noted that in sentencing him to the mandatory minimum sentence of 30 days imprisonment in light of a prior related conviction, the trial judge said that he was taking into account the fact that the Appellant was in the back of the police cruiser for longer than he should have been and sustained bruises. In fact, despite not having found a Section 9 violation, the trial judge said that he was “ameliorating the sentence” as a result of the fact that the Appellant was handcuffed and in discomfort for a longer period of time than would normally have been the case. On appeal, the Appellant did not submit that a sentence below the mandatory minimum is justified. Such an argument would be difficult to sustain in light of the comments of the Court in R v. Nagogaluak 2010 SCC 6 that the state conduct would have to be particularly egregious to justify such a result. In Donnelly, supra, the Court stated that sets a very high standard (at paragraph 171). The actions of the officers in this case cannot be described as egregious such as to justify a sentence below the mandatory minimum. I am satisfied that the Appellant received a remedy from the trial judge based on his comments that he was ameliorating the sentence to take into account the fact that the Appellant was handcuffed in the police cruiser for longer than he should have been.

[12] For the foregoing reasons, the appeal is dismissed. If there is any time remaining to be served on the Appellant’s sentence, he is directed to surrender himself into custody at 8:00 p.m. on Friday January 18, 2019 to continue serving his sentence of imprisonment.

Justice L. Bird