Court File and Parties

R. v. Howie, CITATION: 2019 ONSC 426 COURT FILE NO.: 4590/18 DATE: 2019-01-16 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Respondent AND: David W.J. Howie, Appellant

BEFORE: Mr Justice Ramsay

COUNSEL: Henry Limheng for the Crown; Joseph A. Loconte for the Appellant

HEARD: January 15, 2019 at Welland

Endorsement

[1] This is an appeal under s. 813 of the Criminal Code from convictions made by Mr Justice J.A. De Filippis on April 17, 2018 for driving with excessive blood alcohol, possession of marijuana and possession of cocaine.

[2] The issues raised on appeal are:

a. whether the trial judge erred in admitting evidence of marijuana, cocaine and breath tests under s.24(2) of the Charter after having found a breach of the appellant’s right under s. 10(b) thereof to be informed of his right to counsel upon detention and to exercise that right;

b. whether he erred in finding no breach of the appellant’s right under s.9 of the Charter to be free from arbitrary detention; and

c. whether he erred in finding no breach of the right under s.8 of the Charter to be free from unreasonable search and seizure.

The facts

[3] On February 16, 2017 Provincial Constable Halliday saw the appellant driving a Ford Focus on Highway 58 in Thorold at 134 km/h in an 80 km zone. At 11:32 pm he stopped the appellant, approached the driver’s door of the Focus and noticed that the appellant’s eyes were red and glossy. He detected a strong odour of an alcoholic beverage coming from the driver’s open window. He saw open beer cans on the floor of the car and a Mason jar containing a green plant substance that he suspected was marijuana. The constable asked the appellant to step out of the vehicle and told him that he was under arrest for driving while performing a stunt contrary to s. 172 of the Highway Traffic Act. At this point he was not sure if the alcoholic odour was coming from the appellant or the beer cans.

[4] The constable put the appellant into the back of the police car and then went back to the Focus to confirm his observations about the beer cans and to get the Mason jar. He did not open the trunk or look under the seats. He saw beer cans on the floor of the vehicle in the front and back seats and he opened the Mason jar. The odour confirmed that it was marijuana.

[5] Constable Halliday then went back to the police car and again observed the alcoholic odour. This time there was no doubt that it was coming from the appellant. At 11:35 pm Constable Halliday called for a drug recognition officer. At 11:37 pm, he told the appellant using the standard terms that having been charged with stunt driving he was not obliged to say anything and that he had the right to retain and instruct counsel. Asked whether he wanted to speak to a lawyer, the appellant answered in the affirmative.

[6] The constable then had a conversation with the appellant in which he asked him when, where and how much he had been drinking. The appellant said that he had had a few drinks one or two hours earlier. The conversation confirmed in the officer’s mind that the appellant had been drinking and reconfirmed his observation that the alcoholic odour was emanating from the appellant. At 11:51 pm the drug recognition officer arrived, but he had no interaction with the appellant. At 11:53 pm Constable Halliday, having by now formed the requisite opinion under s. 254 of the Code, read the breath demand and took the appellant to the detachment. When the appellant was lodged into the cells he was searched. There was 3.6 g of cocaine in his pocket. The appellant spoke to duty counsel. He was taken to the breath technician where he gave breath samples. The approved instrument gave readings of 166 and 152.

The appellant called no evidence. The admission of the Crown’s evidence led to the conviction of the appellant.

Unreasonable search of the car

[7] I agree with the trial judge that the seizure of the marijuana from the vehicle was a lawful incident of the arrest of the accused for stunt driving. It was related to the arrest. The officer caught the appellant in the act of performing a stunt on a highway. While arresting him he saw something in the car that looked like marijuana. So he seized it to preserve it as evidence. That meets the test in R. v. Caslake, [1998] 1 SCR 51.

Arbitrary detention

[8] The appellant was lawfully stopped and detained for stunt driving: Highway Traffic Act, section 172; O Reg. 455/07 section 3 clause 7; Highway Traffic Act, s. 217 (2); Provincial Offences Act, s. 149. But the appellant argues that once the officer left him in the police car to look for marijuana, the detention changed into an investigative detention for a drug offence. The continued detention based on mere suspicion was arbitrary, it is said. The arrest for stunt driving “counts for nothing” because the investigation of stunt driving was over. The officer had the power at that point to release the appellant with a summons or notice under s.149 of the Provincial Offences Act.

[9] The trial judge’s rejection of this argument was correct. The investigation of stunt driving was not over. The detention was legally justified in three ways:

a. The officer had the right to arrest the appellant under s. 217 of the Highway Traffic Act and to hold him under s. 149 of the Provincial Offences Act.

b. The officer had articulable cause for investigating the commission of a drug offence and a legal right to search the vehicle as an incident of the appellant’s arrest.

c. The officer was entitled under s. 216 of the Highway Traffic Act to detain the appellant to investigate impaired driving: R. v. Elias; R. v. Orbansky, 2005 SCC 37.

[10] There was nothing arbitrary about the detention.

Failure to inform the appellant of the reasons for detention

[11] The officer did not inform the appellant that he was investigating possession of marijuana. He did not mention impaired driving to the appellant until the breath demand at 11:38 pm, although it would have been evident to the appellant from the officer’s questions that he was interested in that topic. This did not amount to a breach of the appellant’s right to be informed of the reason for his detention. The detention of the appellant cannot be artificially sliced up into separate components. The plain fact is that the officer stopped the appellant because of his unsafe driving and then investigated it. One aspect, extreme speed, was immediately evident. Other aspects gradually became evident as the investigation proceeded in the course of 21 minutes. There was never a change in the focus of the investigation or, to any significant degree, in the seriousness of the offences.

[12] In R. v. Evans, [1991] 1 S.C.R. 869, paragraph 31, McLachlin J. said:

The right to be promptly advised of the reason for one's detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not [page887] know the reasons for it: R. v. Kelly (1985), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-53, "[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy". In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

[13] The appellant was told in clear and simple terms that he was detained for driving too fast. The officer was not obliged to re-inform him every time another offence crossed his mind: R. v. Kumarasamy, 2011 ONSC 1385. The appellant knew that he had to submit to detention because he had been arrested for stunt driving. Whether more information would have helped him exercise his rights is entirely academic in the circumstances. He did not waive any rights.

Failure to inform the appellant of his right to counsel without delay

[14] The appellant was not informed of his right to counsel until five minutes after he was arrested. The trial judge said:

I find a violation of subsection 10(b) because P.C. Halliday failed to advise the defendant of his right to counsel without delay and curtail questioning until the defendant exercised this right.

[15] After a thorough analysis the judge admitted the evidence under s. 24(2) of the Charter.

[16] No evidence was obtained because of the five minute delay. If that is the extent of the breach, there can be no argument with the judge’s decision to admit the evidence.

Failure to hold off questioning at roadside

[17] Upon being informed of his right to counsel, the appellant, when asked if he wanted to speak to a lawyer, answered in the affirmative. The officer then, still at roadside, asked him about his prior consumption of alcohol, before the appellant had had a chance to speak to a lawyer. The trial judge found this to be a breach of the appellant’s right to counsel but admitted the evidence under s. 24(2) of the Charter. The appellant argues that this was an error because the breach was serious. The conversation at roadside was not offered as proof of guilt. It was only used on the Charter application to show the officer’s belief. However, the officer testified that he did not think he had grounds to make the breath demand until after the conversation at roadside. It follows, it is argued, that by failing to curtail questioning the officer got grounds to make the demand that led to the breath sample evidence.

[18] I note, as the judge did, that while the conversation at roadside convinced the officer that he had grounds to make the breath demand, objectively speaking he already had ample grounds – the bad judgment revealed by extreme speed, odour of alcohol, slurred speech, bloodshot and glassy eyes and presence of marijuana. That by itself reduces the seriousness of the breach.

[19] In the end, however, I reject the appellant’s argument for exclusion of the evidence for reasons that differ from those of the trial judge. Unlike the trial judge, I do not think that the officer was obliged to hold off from the sort of questioning in which he engaged. I conclude that the only breach of the appellant’s rights was the five minute delay in informing him of them.

[20] It is well settled that the right to counsel under s. 10(b) of the Charter obliges police to hold off from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel: R. v. G.T.D., 2018 SCC 7.

[21] There is, however, an equally settled limitation on that rule that applies in the circumstances of the present case. In R. v. Elias; R. v. Orbansky, 2005 SCC 37, Charron J. said that there is an implicit limit on the rights in s. 10(b) during the screening process permitted by s. 216 of the Highway Traffic Act, including checking the sobriety of the driver by various means such as observing the driver through the car window, asking the driver about his prior consumption of alcohol, asking the driver to exit the vehicle, checking for the smell of alcohol, and requesting the driver to perform sobriety tests.

[22] The appellant submits that the Orbansky doctrine has no application once a detained person has been informed of his right to counsel and has opted to exercise it. I have not been cited any authority for that proposition and I do not see why it should be so. The accused was found committing a serious provincial offence. He was therefore arrested and told of his right to counsel, which he opted to exercise. The public interest in investigation and prevention of impaired driving are in no way diminished by the accompanying provincial offence. There is no reason not to follow the binding authority in Orbansky. Questions at roadside about prior consumption of alcohol are recognized as a reasonable limit on the right to counsel. There was no breach of the appellant’s right to consult counsel.

Conclusion

[23] On that view there is no need to consider further the judge’s application of s.24 (2) of the Charter. He was quite right to admit the evidence. The appeal is dismissed.

J.A. Ramsay J. Date: 2019-01-16