COURT FILE NO.: SCA(P) 1151/18
DATE: 2019 10 07
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Erin Norman, for the Respondent
Respondent
- and -
CHAD KING
Douglas Lent, for the Appellant
Appellant
HEARD: April 30, 2019
REASONS FOR JUDGMENT
[On appeal from the judgment of Duncan J.
dated July 11, 2018]
DENNISON J.
Introduction
[1] Mr. King was arrested for operating a motor vehicle with a blood/alcohol concentration over the legal limit of 80 mg/100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code.
[2] He was detained for approximately five hours between the time of his arrest and his release from police custody. He told the arresting officer that he had no one to pick him up at the station after he failed the breath tests. The Acting Sergeant, who was in charge of deciding when Mr. King could be released, did not have any notes about his dealings with Mr. King. He could not say why he decided that Mr. King should be detained.
[3] The trial judge found that the police breached Mr. King’s s. 7, 11(d) and s. 9 Charter rights by over-holding him after his arrest because the police could provide no evidence as to why Mr. King was detained. The trial judge held that, despite the Charter violations, this was not an appropriate case to stay the charges pursuant to s. 24(1) of the Charter. The trial judge also held that the breath test results were not “obtained in a manner” that violated the Charter and therefore the issue of whether the breath test results should be excluded could not be considered pursuant to s. 24(2) of the Charter.
[4] Mr. King was convicted of driving with over 80 mg of blood alcohol. As a result of the Charter breaches he received a reduced sentence of a fine of $1.00.
[5] The issues to be determined on this appeal are:
Did the trial judge err in finding that the evidence adduced at trial proved the offence beyond a reasonable doubt?
Did the trial judge err in not staying the charge pursuant to s. 24(1) of the Charter?
Did the trial judge err in finding that s. 24(2) of the Charter was not an available remedy in this case?
If the trial judge erred, should the breath test results be excluded pursuant to s. 24(2) of the Charter?
Background Facts
Mr. King’s Arrest and Detention
[6] Mr. King was stopped in his motor vehicle for a sobriety check at approximately 1:25 a.m. as he exited the QEW at Hurontario. His breath smelled of alcohol and there were other minor indicia of alcohol consumption. Mr. King failed the ASD test. He was taken back to the police station for breath tests that resulted in readings of 150 mg of blood alcohol at 2:15 a.m. and 2:36 a.m. Mr. King was arrested for driving with over 80 mg of alcohol per 100 mg of blood.
[7] After the testing and paperwork were completed, Mr. King was asked by PC Kosher if he had anyone to pick him up. Mr. King replied, “no.” PC Kosher testified that if there were someone available, he would have released Mr. King.
[8] It was the Staff Sergeant’s decision to detain Mr. King. PC Kosher testified that if it had been his choice, he would not have been comfortable releasing Mr. King knowing the readings and because Mr. King had made poor judgments that evening and had shown signs of impairment. PC Kosher did not believe it would have been safe.
[9] Mr. King was lodged in the cells for approximately five hours and was released on a promise to appear at 7:30 a.m. Mr. King stated that his time in the cell was not pleasant. It was cold, and he was intimidated by another occupant in the cell who appeared to be coming off a drug high.
[10] It was the Staff Sergeant’s responsibility to determine if Mr. King should be detained or released. The Staff Sergeant had no recollection of his dealings with the Appellant and his only notation related to when Mr. King was first brought to the station. There were no notes about any post-breath test dealings with Mr. King. The Staff Sergeant explained that he was in an acting position at that time; he had received little or no mentoring, so he had to develop his own practices. The Staff Sergeant testified that he now makes more thorough notes when dealing with persons in Mr. King’s situation.
[11] The Peel Police did not have a system to record and account for the reasons why a person was held in detention. As a result, the Staff Sergeant in this case could not say why he decided that Mr. King should be detained pursuant to s. 498 of the Criminal Code. As the trial judge noted, the Staff Sergeant could not even say whether, in fact, he decided to detain Mr. King.
[12] The Staff Sergeant agreed that if Mr. King had the ability to take a cab the short distance home that factor would likely have resulted in Mr. King’s release. The Staff Sergeant would not have disqualified Mr. King from release based on his 150 readings, unless Mr. King showed a lack of awareness or understanding of the documents that were provided to him.
The Trial Judge’s Decision
[13] The trial judge found that Mr. King could not meet his burden of demonstrating that his detention was arbitrary because there was no evidence as to why he was detained. The trial judge found that Mr. King was “stonewalled” and that this lack of evidence created an unfair trial, violating Mr. King’s s. 7 and s. 11(d) Charter rights.
[14] The trial judge held that the just and appropriate remedy for the s. 7 and s. 11(d) Charter violations was to relieve the applicant of the burden of proof and to accept as a fact that he was over-held and arbitrarily detained contrary to s. 9 of the Charter, in the absence of evidence to the contrary.
[15] The trial judge determined that a stay of the proceedings pursuant to s. 24(1) of the Charter was not a just remedy. Relying on his reasoning in an earlier decision, he held that over-holding “is a treatment or punishment that is best remedied by giving it consideration on sentencing.” The trial judge held that a stay was not appropriate in this case as there were circumstances that could have justified detention. Mr. King had high readings and there was no one to pick him up. In addition, the length of detention was not excessive having regard to the breath readings. There were no other aggravating features, such as strip search or other abusive police behaviour that has been noted in other cases where charges have been stayed.
[16] The trial judge also considered whether s. 24(2) of the Charter was an applicable remedy. The trial judge recognized that in R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, Laskin J.A. held that the interpretation of “obtained in a manner” in s. 24(2) of the Charter includes consideration of Charter breaches that occurred after the gathering of the evidence. The trial judge recognized that some other provincial court decisions followed this analysis in the over-holding context. The trial judge found that he could not follow those decisions because he was bound by R. v. Kavanagh, 2017 ONSC 637, and R. v Cheema, 2018 ONSC 229. These decisions held that Pino did not overrule the earlier Court of Appeal decision of R. v. Iseler, 2004 CanLII 34583 (ON CA), [2004] 190 C.C.C. (3d) 11 (C.A.), which held that there was no temporal or causal connection between the over-holding and the obtaining of the breath results.
[17] The trial judge also held that even if the Superior Court decisions were not binding, he agreed with their comments with respect to the nexus between the breach and the evidence. The trial judge found that the exclusion of the evidence was not an available remedy under s. 24(2) of the Charter.
[18] The trial judge convicted Mr. King and sentenced him to a $1.00 fine, a 12-month driving prohibition order and the Victim Fine Surcharge.
Issue #1: Did the Trial Judge err in Finding that the Crown had Proven Beyond a Reasonable Doubt that the Appellant Committed the Offence?
[19] The Appellant did not pursue this argument in his factum or in oral argument. There is no basis in the evidence to find that the Crown failed to prove the offence beyond a reasonable doubt.
Issue #2: Did the Trial Judge err in not Staying the Charges Pursuant to s. 24(1) of the Charter?
[20] The trial judge’s decision is owed considerable deference in determining whether to grant a remedy under s. 24(1) of the Charter. Appellate intervention is warranted “only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice””: see R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 48.
[21] The Appellant submits that the trial judge erred in not granting a stay of proceedings in this case given the “historical nature of police conduct in the Peel Region related to over-holding.” He relied on several decisions over the past 20 years in the region to demonstrate that over-holding was a systemic issue for the Peel Regional Police.
[22] The trial judge made no error in declining to grant a stay of proceedings in the circumstances of this case.
[23] A stay of proceedings is the most drastic remedy that a criminal court can order. It should only be granted in the “clearest of cases”: see Babos, at para. 31. The first situation where a stay may be appropriate is where the state conduct compromises trial fairness. The trial judge addressed that concern by presuming that the Appellant was arbitrarily detained because the officer had no notes or memory of the Appellant’s detention.
[24] The second situation in which a stay of proceedings may be granted is where the state conduct creates no risk to trial fairness but risks undermining the integrity of the judicial process. The second, or “residual category,” is at issue as it relates to whether the Appellant has proven that there is a systemic problem of over-holding by Peel Police.
[25] A stay is a prospective remedy. As explained in Babos, at para. 32, a three-part test applies. First, there must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated” through the conduct of the trial or its outcome. Second, there must be no alternative remedy capable of redressing the prejudice. Third, if there is still uncertainty whether a stay should be granted after considering the first two factors, the court is required to balance the interests in favour of granting a stay against society’s interest of having a trial on the merits.
[26] The Appellant submits that the trial judge erred in failing to give adequate weight to the systemic problem of over-holding in Peel Region. He submits that over-holding is such a significant problem in Peel Region that to continue with the prosecution would be to condone the Police’s conduct causing irreparable prejudice to the integrity of the justice system.
[27] The systemic over-holding of persons for no apparent reason in violation of their s. 9 Charter rights may fall within the category of a “clearest of cases” that warrant a drastic stay of proceeding. The systemic violation of an individual’s Charter rights by the police for no reason would manifest and perpetuate the Charter breach, causing irreparable prejudice to the integrity of the judicial system: see Cheema, at para. 57.
[28] The trial judge adopted his reasoning in R. v. Price, 2010 ONSC 1898, [2010] 94 M.V.R. (5th) 23, where he held that the over-holding cases continued to come before the court which suggested that an appropriate remedy may be a stay. However, he was not prepared to find that there was a systemic problem because there was no evidence as to the frequency of post-test detention or wrongful post-test detention. As such, the trial judge found that over-holding “may [occur in] a very small percentage of cases, hardly justifying a conclusion of systemic ill” which would warrant a stay of proceedings.
[29] It was open to the trial judge to find that there was insufficient evidence of systemic over-holding by Peel Police. The Appellant produced seven cases over the past two decades where over-holding occurred. There is no evidence of the frequency of over-holding as compared to cases where the police do not over-hold persons to demonstrate that this is a common or systemic problem. see also Cheema, at paras. 58-59.
[30] It was also open to the trial judge to find that a reduction of sentencing was an alternative remedy capable of redressing any prejudice that was created from the over-holding, as opposed to staying the case. In coming to this conclusion, the trial judge considered that there were no other aggravating factors, such as delay in making a demand, an illegal search or strip search that aggravated the Charter breach: see R. v. Tikaram, 2008 ONCJ 124, [2008] O.J. No. 1086. The trial judge also noted that, in this case, there were circumstances that could have justified the detention, including the high readings and that no one was available to pick up the Appellant.
[31] In deciding that this was not the clearest of cases warranting a stay of proceedings, the trial judge reasonably considered that the Appellant was over-held for five hours and had no one to pick him up. There are several cases where persons have been held for longer periods of time or where there was someone available to pick up the accused where courts have found that it was not appropriate to stay the charges. See for example, R. v. Mangat, 2006 CanLII 20227 (ON CA), [2006] 213 O.A.C. 266 (Ont. C.A) where the accused was not brought before a justice within 24 hours; Iseler, where the accused was over-held for 11 hours; Price, where the accused was held for 7 hours; R. v. Provo, 2015 ONCJ 311, 335 C.R.R. (2d) 243 and R. v. De Lima, 2010 ONCJ 230, 218 C.R.R. (2d) 324, where the accused were over-held for more than 12 hours.
[32] The trial judge’s decision not to grant a stay of proceedings is reasonable in the circumstances.
Issue #3: Did the Trial judge err in Finding that s. 24(2) Charter was not an Available Remedy?
[33] Section 24(2) of the Charter provides that where “evidence was obtained in a manner” that infringes a Charter right, “the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.”
[34] The trial judge found that he was bound by the Superior Court decisions of Cheema and Kavanagh. These decisions held that where there was over-holding, breath test results were not “obtained in a manner” that violates the Charter and therefore s. 24(2) of the Charter is not applicable. Even if the trial judge was not bound by these decisions, he would not have found that the evidence was obtained in a manner that violated the Charter applying the reasoning set out in Kavanagh and Cheema.
[35] The trial judge’s decision not to exclude the evidence pursuant to s. 24(2) is owed considerable deference. Deference is also owed to the trial judge’s decision as to whether the evidence was obtained in a manner that violated the Charter. Absent an unreasonable finding or an apparent error about the applicable principles or rules of law appellate intervention is not warranted: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 44.
[36] Even if the trial judge was bound by the two Superior Court decisions, I am of the view that it is an error in principle and law not to consider whether the breath test results should be excluded pursuant to s. 24(2) of the Charter for the reasons set out below.
The Meaning of Obtained in a Manner
[37] Whether evidence was “obtained in a manner” is a threshold issue that must be satisfied to engage s. 24(2) of the Charter.
[38] In R. v. Pino, 2016 ONCA 389, Laskin J.A. reviewed the evolution of the s. 24(2) jurisprudence interpreting the phrase “obtained in a manner” where the evidence was gathered before the Charter breach occurred. He found that the previous jurisprudence did not prevent the applicability of s. 24(2) simply because the evidence was gathered before the breach.
[39] Laskin J.A. noted that in R v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, Dickson C.S.C. took a broad and liberal approach to the obtained in a manner requirement in s. 24(2) of the Charter. The Court did not expressly consider and reject the proposition that evidence obtained before a Charter beach could not be excluded pursuant to s. 24(4). Rather, the Court held that “obtained in a manner” was not limited to a causal connection; a temporal connection may be sufficient, so long as the breach was not too remote and occurred in the course of a single transaction during which the evidence was obtained.
[40] More recently, in R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, the Supreme Court upheld the trial judge’s decision to exclude drugs that were seized from a car before the Charter breaches. In that case, police stopped the accused and found drugs in his car. The police waited 22 minutes from the time the accused was stopped until he was arrested and told him the reason for his arrest. Police then waited a further two to five minutes before advising him of his right to counsel. The trial judge held that the delay breached the accused’s s. 10(a) and s. 10(b) Charter rights and excluded the seized drugs pursuant to s. 24(2) of the Charter. The main focus of the appeal was whether the Alberta Court of Appeal was justified in raising a new issue on appeal. Rothstein J. found that it was not. In considering s. 24(2) analysis, Rothstein J. did not address the “obtained in a manner” requirement, but upheld the trial judge’s exclusion of the evidence, implicitly permitting the exclusion of evidence gathered before Charter breaches.
[41] In Pino, Laskin J.A. listed factors that should guide the court’s approach in determining whether the evidence was “obtained in a manner” for the purpose of s. 24(2). As he stated at para. 72:
the following considerations should guide the court’s approach to the “obtained in a manner requirement
• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire “chain of events” between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.
[42] Applying these principles, Laskin J.A. held that the evidence in Pino was obtained in a manner that violated the Ms. Pino’s Charter rights. Police stopped Ms. Pino in her vehicle and seized 50 marijuana plants. The trial judge found that police violated Ms. Pino’s s. 8 Charter rights by conducting a takedown of the vehicle while masked and at gunpoint. The trial judge also found that Ms. Pino’s s. 10 Charter rights were violated because police improperly informed her of her right to counsel and delayed advising her of her right.
[43] Laskin J.A. held that the trial judge erred in failing to consider the s. 10(b) and s. 10(a) Charter breaches in the s. 24(2) Charter analysis. He held that the breaches should have been considered because there was a temporal connection between the evidence and the breaches. The three breaches occurred “relatively close in time” and were “part of a continuum straddling Ms. Pino’s arrest.” He also found that there was a contextual connection, meaning something occurred which pertained “to the surroundings or situation in which something” happened. In that case, that something was Ms. Pino’s arrest. The two s. 10 Charter breaches “surrounded her arrest or arose out of it” and therefore should have been considered in the s. 24(2) Charter analysis: see para. 74.
Reliance on Iseler is Misplaced
[44] The trial judge found that he was bound by the Superior Court decisions of Cheema and Kavanagh. In Cheema, the summary conviction appeal judge held that the Court of Appeal’s decision in Pino did not overturn the Court’s 2004 decision in Iseler and therefore s. 24(2) of the Charter did not apply: Cheema, at para 68.
[45] With respect, I disagree that Iseler is determinative that s. 24(2) of the Charter is not applicable where over-holding occurs after the breath tests are completed for two reasons.
[46] First, the Court of Appeal in Iseler did not address the meaning of “obtained in a manner” in s. 24(2) of the Charter. In Iseler, the accused was arrested and processed for impaired driving. He was detained in a cell and ignored by police for over 11 hours. On appeal, the accused argued that the trial judge erred in not finding that the accused was arbitrarily detained and for failing to stay the proceedings.
[47] The concern in Iseler was whether the manner in which the evidence was gathered affected trial fairness such that a stay should have been granted pursuant to s. 24(1) of the Charter. The Court did not address the impact of the evidence on the administration of justice nor did it consider whether s. 24(2) of the Charter was applicable.
[48] Armstrong J.A. held that the trial judge erred in not finding that Mr. Iseler was arbitrarily detained. Despite the illegal detention, he held that this was “not the kind of case that calls for a stay of proceedings.” In determining that this was not the clearest of cases warranting a stay, Armstrong J.A. held that “the breach had nothing to do with the investigation and gathering of evidence against him. It did not impact trial fairness.” Armstrong JA. held that “[t]here is no temporal or causal connection between the breach and the obtaining of the evidence.” He further noted that another remedy may have been available but only the issue of the stay was before the court.
[49] Second and more importantly, the statement in Iseler that there is no temporal or contextual connection between the unlawful detention and the breath tests is no longer valid in light of the Court of Appeal’s analysis in Pino. The Court in Pino specifically considered the meaning of “obtained in a manner” in s. 24(2) of the Charter as it related to evidence gathered before Charter breaches.
[50] While the Court of Appeal in Pino did not explicitly overrule its decision is Iseler, it restated and applied a more generous test in considering whether the evidence was “obtained in a manner” pursuant to s. 24(2) of the Charter. The principles set out in Pino apply regardless of the factual situation.
The Breach Must Occur During the Same Transaction
[51] In Pino, Laskin J. held that the court must look at the “chain of events” between the police and the accused and consider whether the evidence and Charter breach occurred during the “the same transaction or course of conduct.” This is a case-by-case assessment.
[52] In R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, Watt J.A. adopted the analysis from Pino finding that the “obtained in a manner” requirement “may be met where the evidence and the breach are part of the same transaction or course of conduct.” Watt J.A. recognized that the Charter breaches may occur after discovery of the evidence but held that the mere fact that the Charter breach occurred after the discovery of evidence “does not, without more, provide a gateway to s. 24(2). The evidence and the Charter breach must be part of the same transaction or course of conduct, the connection - causal, temporal, contextual or some combination - not too remote or tenuous”: at para. 135.
[53] R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, provides an example of how the course of conduct is considered in determining if evidence was obtained in a Charter-violating manner. In Poirier, the police obtained a general warrant to detain the accused for a bed-pan vigil because it was believed he had drugs in his rectum. The warrant did not require that he be taken before a justice within 24 hours. He was not taken before a justice until 43 hours after his arrest. Section 503 of the Criminal Code requires that an accused be brought before a justice of the peace without unreasonable delay but, in any event, no later than 24 hours after his arrest. The Crown argued that there was no violation of s. 503 until after the 24 hours passed and therefore there was no s. 8 Charter violation because the drugs were excreted within the first 24 hours.
[54] Weiler J.A. found that the warrant was invalid because it did not require the accused to be brought before a justice within 24 hours. She also rejected the Crown’s argument that the s. 8 Charter breach did not occur until after 24 hours. Weiler J.A. held that this argument “creates an artificial divide in what was one course of conduct.” She held that “even if the Crown was correct that the appellant’s rights were only breached after 24 hours, there is no doubt…that the evidence obtained and the Charter breach would be both temporally and contextually linked”: para. 62.
Was the Over-holding Part of the Same Transaction?
[55] The jurisprudence is divided as to whether over-holding after an accused has failed breath tests is part of the same transaction or course of conduct.
[56] Some courts have held that there is a sufficient temporal and contextual connection between the obtaining the breath test results and the over-holding to be considered part of the same transaction and s. 24(2) of the Charter is applicable: see R. v. Lorenzo, 2016 ONCJ 634, at paras. 14 to 22; R v. Deveau, 2014 ONSC 3756, 315 C.R.R. (2d) 181, at paras. 19 and 20; R. v. Provo, 2015 ONCJ 311, at paras 54-58; R. v. McEwan, 2018 ONCJ 702, at para. 61; R. v. Guilbeaut, 2018 ONCJ 703, at para. 75; R v. Turcotte, 2017 ONCJ 716, at paras. 22-27.
[57] Other decisions have found that s. 24(2) is not applicable because there is not a sufficient temporal or contextual connection between the breath test results and the unlawful detention: see Cheema, Kavanagh; R. v. Carreau, 2016 ONCJ 700, at paras. 46 to 49; R. v. Fleming, 2018 ONCJ 843, at para. 45; R. v. Ruscica, 2017 ONCJ 864, at para 96.
[58] The summary conviction appeal judge in Kavanagh was of the view that there is no connection, casual, temporal or contextual between obtaining the breath test results and the unlawful detention of an accused after the test has been completed because it is not part of the same transaction. He held that there were five separate transactions during the accused’s interaction with police in the investigation of the “over 80” offence. The first transaction occurred when the investigating officer “formed the requisite grounds, gave a proper demand and took the [accused] into custody for purposes of the breath test.” The second transaction involved the accused exercising his rights to counsel. The third transaction involved the taking and analysing of breath samples. The fourth transaction “involved formally charging the [accused] and serving him with various documents.” “The final transaction was keeping the [accused] in custody until he was sober”: at para. 50.
[59] Breaking the accused’s interactions with police into discrete transactions decontextualizes the accused’s continued interaction with police during the investigation and arrest for driving with over 80 mg/100 ml of blood alcohol. This approach creates an “artificial divide” of the police interactions with the appellant that Weiler J.A. commented on in Poirier.
[60] The problem with this decontextualized approach is demonstrated when one considers the second transaction. The second transaction was the accused exercising his rights to counsel. If this was truly a separate transaction, the breath test results would not be considered “obtained in a manner” and s. 24(2) could not be relied upon to exclude the breath test results. Such an approach is contrary to jurisprudence that has excluded breath test results pursuant to 24(2) where accused’s rights to counsel were violated: see R. v. Arezes, 2018 ONSC 6967; R. v. Johnson, 2019 ONSC 1993; R. v. Larocque, 2018 ONSC 6475; R. v. Menard, 2018 ONSC 5293; R. v. Eustache, 2018 ONCJ 606; and R. v. Acton, 2018 ONCJ 99.
[61] In addition, narrowly defining the transaction or course of conduct results in causation becoming the primary consideration in determining if s. 24(2) is applicable. Causation as the exclusive means by which s. 24(2) of the Charter is engaged was explicitly rejected by the Supreme Court: see R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, Strachan.
[62] The concern raised in the jurisprudence that if the continued detention of an accused is all that is required to trigger the applicability of s. 24(2) of the Charter is misplaced: see Kavanagh, at para. 49. The continued detention of an accused or even a temporal connection does not automatically determine that s. 24(2) is applicable. The test to determine if evidence was “obtained in a manner” is whether there is a sufficient causal, temporal, or contextual connection between the obtaining of the evidence and the Charter breach that is not too remote or tenuous.
[63] The Supreme Court in R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, recognized that a temporal connection is not determinative of whether s. 24(2) of the Charter applies. In that case, there was a Charter breach in the search of a residence. The search, in part, led a co-accused to come forward and make a statement to police that implicated Mr. Goldhart in possessing the drugs found in the residence. The issue was whether the evidence (Mr. Goldhart’s statement) was obtain in a manner that breached the Charter, such that the trial judge should have considered excluding the statement, pursuant to 24(2) of the Charter.
[64] The Supreme Court held that “while a temporal link will often suffice, it is not always determinative” where “the connection between the securing of the evidence and the breach is remote.” The concept of remoteness relates to both the temporal connection as well as the causal connection. The Court held that s. 24(2) requires consideration of the whole of the relationship between the breach and the evidence. As the Court noted, “if both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom on the Charter”: at para. 40.
[65] The Supreme Court also held that the “temporal connection may be so strong that the Charter breach is an integral part of a single transaction.” In those cases, “a causal connection that is weak or even absent will be of no importance.” Ultimately, the strength of the connection between the evidence and the Charter breach is a question of fact that should be decided on a case-by-case basis: Goldhart, para. 40.
[66] There are strong policy reasons for defining “obtained in a manner” generously. Determining if evidence is “obtained in a manner” that violates the Charter is a threshold issue that must be satisfied before the court can consider whether the evidence should be excluded pursuant to s. 24(2) of the Charter.
[67] If the narrow interpretation of “obtained in a manner” is applied it creates a test that provides no remedy for Charter breaches. For example, if the unlawful detention of the Appellant occurred before the breath tests were completed s. 24(2) would be applicable because there is a strong causal connection between the detention and the breath test results: see R. v. MacMillan, 2019 ONSC 3560, para. 69; and R. v. Ruth, [2017] 393 C.R.R. (2d) 252 (Ont. C.J.), paras. 75-81. If, however, the Charter breach occurs after the gathering of the breath test results, under the narrow approach, the only remedy available to the Appellant would be a stay of proceedings. The bar to even consider whether evidence should be excluded should not be so high.
[68] Narrowly defining this threshold issue unduly limits the “gateway” to the focus of s. 24(2) - which is to exclude evidence where its admission would bring the administration of justice into disrepute. In Pino, Laskin J.A. referred to Professor Kent Roach, in Constitutional Remedies in Canada, loose-leaf, 2d ed. (Toronto: Canada Law Book), at para. 10.880, which stated that it should not matter whether the breach occurred before or after the evidence was obtained. Rather, the key is whether the admission of the evidence as a result of Charter breach would bring the administration of justice into disrepute: Pino, at para. 70.
Application to this Case
[69] When the entire chain of events between the Appellant and the police is considered, there is a significant contextual and temporal connection between the breath test results and the Charter breach. The breath test results were therefore “obtained in a manner,” as required by s. 24(2) of the Charter.
[70] The chain of events is as follows: The Appellant was suspected of driving with over 80 mg of alcohol in his blood. He failed the roadside test that gave the officer grounds make a demand pursuant to s. 254(3) of the Criminal Code. The Appellant was taken to the station where he failed the breath tests and was arrested. If appropriate grounds had existed, the Appellant’s continued detention would have been justified pursuant to s. 498(1.1) of the Criminal Code.
[71] There is a sufficient contextual connection between the breath test results and the Appellant’s unlawful detention. The Appellant’s unlawful detention happened in the situation where the police arrested the appellant and improperly detained him as a result of his arrest. Had the breath test results been insufficient to charge the Appellant with driving while over 80, there would have been no basis for the police to detain him.
[72] There is also a strong temporal connection in this case; six hours past between the Appellant’s initial contact with the police and his eventual release from custody. Police stopped the Appellant at 1:25 a.m. He was taken to the police station for breath tests. He failed the breath tests with readings of 150 at 2:15 a.m. and 2:36 a.m. He remained detained contrary to s. 498(1) of the Criminal Code after the breath readings until his release at 7:30 a.m.
[73] The contextual and temporal connection between the breath test results and the Charter breach is not remote or tenuous. In the circumstances, the evidence was “obtained in a manner” that violated the Appellant’s Charter rights such that s. 24(2) of the Charter should be considered.
Issue #4: Should the Evidence be Excluded Pursuant to s. 24(2) of the Charter?
[74] Section 24(2) of the Charter provides that “the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
[75] In considering whether evidence should be excluded, the court must balance the three factors set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71: the seriousness of the violation; the impact of the breach on the accused’s Charter rights; and society’s interest in an adjudication on the merits. The overarching purpose of s. 24(2) is to determine if the admission of the evidence would bring the administration of justice into disrepute: R v. Le, 2019 SCC 34, at para. 140.
[76] The tension between the three Grant factors, was discussed by Doherty J.A. in in R. v. Le, 2018 ONCA 56, at para. 151:
What the jurisprudence under s. 24(2) of the Charter recognizes is the problematic nature of the Grant calculus. The relevant age-old philosophical question is this: Do the ends justify the means? The usual answer is that bad means undermine good ends. The answer often yielded by the Grant calculus is this: Sometimes the achievement of a good end can retrospectively justify bad means. This tension is particularly pronounced in the case of guns obtained as a result of Charter-infringing police conduct. For instance, in Grant, the Supreme Court of Canada admitted a firearm. In Paterson, the majority excluded one. As it excluded the conversations in Marakah.
[77] After having balanced the three Grant factors, I am satisfied that the admission of the breath test results in this case would not bring the administration of justice into disrepute.
Seriousness of the Charter Breach
[78] The first factor to consider is the seriousness of the state’s misconduct. As noted in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 23, police conduct may be placed on a continuum that runs from blameless conduct to conduct that demonstrates a blatant disregard for Charter rights. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.
[79] This was not a deliberate Charter breach. The Charter breach arose because the Staff Sergeant failed to take notes to explain why the Appellant was detained. The Staff Sergeant had just started in that role and now makes more thorough notes of his interactions. The Charter breach was presumed because of his failure to make adequate notes.
[80] There was no other evidence that the police mistreated the Appellant. In addition, as I found in relation to the request for a stay of the proceedings, the Appellant did not demonstrate that there is a systemic issue of over-holding that would aggravate the seriousness of the Charter breach.
[81] The trial judge found that, “there were circumstances that could have justified [the Appellant’s] detention.” The Appellant had high readings of 150 mg, which may have provided a basis for lawful detention, in and of themselves. For example, in R. v. Sapusak, [1998] O.J. No. 4148 (C.A.), Morden A.C.J.O held that the appellant was not arbitrarily detained where police detained him for his own protection in light of the appellant’s 130 mg readings.
[82] The Appellant had no one to pick him up. PC Kosher asked the Appellant if he had anyone to pick him up and Mr. King said he did not. If the Appellant had someone to pick him up, PC Kosher would have released him. The Appellant could not recall being asked if he had someone to pick him up, consistent with him being impaired. PC Kosher testified that he would have told the Staff Sergeant that the Appellant did not have anyone to pick him up.
[83] PC Kosher also testified that he would not have been comfortable releasing the Appellant, although this decision was ultimately the Staff Sergeant’s. PC Kosher noted the Appellant’s high blood alcohol readings, his poor decision to drive and that he had a flushed face, watery, bloodshot eyes and an indifferent attitude.
[84] The Charter breach is at the lower end of the spectrum and therefore favours admitting the breath test results.
Impact of the Charter Breach
[85] The second stage of the Grant analysis focuses on “whether and to what extent, in the totality of circumstances, the Charter breach actually undermined the interests protected by the right infringed”: R. v. Le, 2019 SCC 34, per Brown and Martin JJ., at para. 151. The more serious the impact on the applicant’s constitutionally protected interest, “the greater risk that the admission of the evidence may signal to the public that Charter rights, however high sounding, are of little actual avail to the citizen,” thereby bringing the administration into disrepute: Grant, at para. 76.
[86] The Appellant was detained for five hours after he failed two breath tests. He gave evidence that his experience in the cells was not pleasant. It was cold, and he felt intimidated by another individual in the cell. While the length of his detention was not as egregious as in some other cases, the Appellant’s unlawful detention still significantly impacted his Charter right not to be arbitrarily detained. This factor favours exclusion of the evidence.
Adjudicating the Facts on the Merits
[87] The final factor to consider is society’s interest in having the case adjudicated on its merits. This question asks whether the truth-seeking function of the criminal trial would be better served by admission of the evidence or by its exclusion: see Grant, at para. 79.
[88] As noted by a majority of the Supreme Court in Le, at para. 142, society’s interest in adjudication of the case on the merits typically pulls in favour of admitting the evidence, “particularly where the evidence is reliable and critical to the Crown’s case.” The Supreme Court noted that this does not mean that all reliable and critical evidence should be admitted. The third inquiry becomes particularly important “where one, but not both of the first two inquiries pull towards the exclusion of the evidence.” Where the first and second inquiries (taken together) make a strong case for exclusion, the third inquiry will seldom tip the balance in favour of admissibility.
[89] Society has a strong interest in adjudicating offences involving alcohol and driving. People who drink and drive put the community at risk of harm, including death. The evidence in this case is real evidence that is crucial to the Crown’s case. This factor weighs in favour of admitting the evidence.
Conclusion
[90] Having balance the three Grant factors, I am satisfied that the admission of the breath test results at this trial would not bring the administration of justice into disrepute.
[91] The appeal is dismissed.
Dennison J.
Released: October 7, 2019
COURT FILE NO.: SCA(P) 1151/18
DATE: 2019 10 07
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
CHAD KING
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of Duncan J. dated July 11, 2018]
Dennison J.
Released: October 7, 2019