COURT FILE NO.: CR-19-00000026-00AP
DATE: 20191203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRANDON SOOKRIT
H. Song, for the Appellant
A. Little, for the Respondent
HEARD: 30 October 2019
s.a.Q. akhtar j.
On appeal from the acquittal entered on 28 February 2019 by Justice Brent Knazan of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The respondent was arrested and charged with refusing to provide a breath sample, possession of a concealed weapon. At trial, the Crown asked the judge to dismiss the weapons charge but continued with the prosecution of the refusal to provide a breath sample offence.
[2] At the end of a blended trial, the trial judge held that the police had committed a series of Charter breaches, the cumulative effect of which required that the refusal to provide a sample had to be excluded from evidence. As a result, the respondent was acquitted.
[3] The Crown appeals the trial judge’s Charter conclusion, alleging a number of errors which led to the breath refusal being wrongly excluded.
[4] For the following reasons, I find that the appeal must be allowed and a new trial ordered.
Factual Background
[5] On 11 February 2018, police stopped the respondent after he was seen driving eastbound on Sheppard Avenue in a meandering fashion. The arresting officer, Police Constable Michael Clarke, smelt alcohol on the respondent’s breath and issued a breath demand. The respondent was uncooperative, indicated that he did not want to “do the test”, said that he wanted a lawyer, and yelled out to passengers seated in his car to call one for him. After the officer explained the consequences of not providing a breath sample and made a further request, the respondent said “I refuse”.
[6] As a result, at 5:46 a.m., the respondent was arrested and handcuffed. The officer conducted a pat-down search for safety reasons and located a black-handled three-and-a-half-inch folding knife in the respondent’s front right jeans pocket. When the officer asked why the respondent was in possession of the knife, the respondent replied it was because he “carried a lot of money”. The officer also discovered a large amount of cash contained in a money clip.
[7] At 5:49 a.m., the officer placed the respondent inside his scout car and advised him that he had the right to retain and instruct counsel without delay. Due to the respondent’s refusal to provide a sample, s. 48.4(1) of the Highway Traffic Act required the officer to impound the respondent’s car for seven days. The officer had originally intended to release the respondent from the scene and began the necessary paperwork to do so. As part of the seizure of the vehicle, the officer conducted an inventory search and found a small amount of marijuana in a bag. A decision was made to take the respondent to the police station.
[8] The respondent was transported to the police station approximately one hour after the arrest and paraded before the desk sergeant where he was again told that he had the right to counsel. He did not have the name of a lawyer but told the police that he would speak to one appointed by the police. The sergeant informed the respondent that he would be able to make calls to family members if he wished to do so.
[9] The sergeant also decided that the respondent would be subject to a Level 3 strip search, based on the fact that the respondent had been found with a knife and drugs, prior to speaking to a lawyer in a private room. That search took approximately six minutes, after which the respondent was placed into a holding room.
[10] The respondent testified that he asked to call his father so that he could get the respondent a lawyer. The officer did not recall the respondent making this request and had no record of it. However, he testified that if it had been made, he would have made a note of it. The trial judge found the officer to be a truthful witness. However, he also believed the respondent’s testimony that he remembered asking to call his father when placed into the interrogation room.
[11] The respondent also agreed that he had asked to speak to duty counsel and initially could not say why he had changed his mind about not seeking a private lawyer when arriving at the station although when pressed by his own counsel he said that he was “hoping to speak to any lawyer at that point”. However, he maintained that when he was taken into the interrogation room he said that he wanted to call his father to get his lawyer’s number. When that did not happen, he spoke to duty counsel.
The Trial Judge’s Findings
[12] The trial judge found that whilst the respondent’s arrest was lawful, and the right to counsel was justifiably suspended whilst the police conducted a pat-down search, everything changed when P.C. Clarke discovered the folding knife. The judge took the view that, at that point, the investigation had changed and that the officer should have provided the respondent with his right to counsel before asking him questions.
[13] The judge found a series of Charter violations starting with a failure to provide the right to counsel on the discovery of the knife and failing to implement the right to counsel by keeping the respondent at the scene for an hour as well as ignoring the respondent’s request to call his father. In addition, the judge found that the police unlawfully strip searched the respondent at the police station because one of the grounds for the search – the respondent’s utterance that he had the knife because he carried a lot of money – was impermissibly obtained and could not be used as a basis for the search.
[14] Apply, the three part test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the judge found that the refusal to blow should be excluded under s. 24(2) of the Charter. As a result, there being no evidence of the offence, the trial judge acquitted the respondent.
The Grounds of the Appeal
[15] The Crown appeals the acquittal on the following grounds:
The trial judge erred in finding a breach under the informational component of s. 10(b) of the Charter;
The trial judge erred in his application of the implementational component of s. 10(b) by misapprehending material evidence;
The trial judge applied the wrong test when evaluating the respondent’s s.8 challenge to the strip search; and
The trial judge misapplied the test in s. 24(2) of the Charter to exclude the evidence of refusing to provide a breath sample.
Did the Trial Judge Err in Assessing the Informational Component of s. 10(b)?
[16] Ms. Song, for the appellant Crown, argues that the judge erred in finding that the informational component of s. 10(b) had been breached because the police failed to give the respondent his right to counsel immediately.
[17] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42, the Supreme Court of Canada explained that the police have a duty to inform a detainee of their right to retain and instruct counsel immediately on detention. However, that duty is subject to “concerns for officer or public safety”.
[18] The Crown relies upon this passage to justify the brief delay that occurred in this case as the officer conducted a pat-down search to ensure his safety.
[19] Ms. Song points to the evidence which shows that because the police were impounding the respondent’s vehicle they were obliged to complete necessary paperwork and, in the interim, placed the respondent in the cruiser. Before doing so, Ms. Song argues that it was reasonable to conduct a pat-down search to ensure officer safety. It was during this search that P.C. Clarke found a knife and asked the respondent why he was in possession of it. The respondent told him it was because he carried a large quantity of money, thereby giving the impression that the knife was a weapon. At this point he was arrested and the right to counsel given.
[20] Mr. Little, on behalf of the respondent, however, says that the police were not entitled to conduct the pat-down search in the first place. He points the court to R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, where Moldaver J. explained that if the police chose to place a suspect in their cruiser – which would lead to a pat-down search as it did in this case – the court had to examine whether there were other reasonable means by which the police could have addressed the issue of ensuring the suspect remained on scene. Here, says Mr. Little, there were no objective grounds to show why the respondent needed to be placed in the car. That being the case, he should not have been, and accordingly, he should not have been subject to a pat-down search. Following that logic, the Crown cannot rely on Suberu to justify the delay.
[21] Whilst I am inclined to agree with Mr. Little’s legal analysis, his argument runs into problems when reading the trial judge’s reasons as the judge himself appeared to have found that the police were indeed justified in searching the respondent.
[22] At paras. 23-25, the judge wrote:
Once Clarke lawfully arrested Sookrit for refusal to provide a breath sample; he had the right to search him incident to arrest. The search yielded the knife; Mr. Sookrit actually told Clarke he had it when Clarke asked him if he had anything.
It is at this point, after the lawful arrest, that the right to retain and instruct counsel without delay and to be informed of that right, that had been justifiably suspended while Clarke investigated the drinking and driving, was revived. Mr. Sookrit was detained, he was arrested, and unusually, he had already said that he wanted to speak to a lawyer.
The investigation was no longer an investigation into Mr. Sookrit's blood alcohol level. He had a right to retain and instruct counsel without delay. Driving him to the police station at that point would have been a reasonable delay. But Officer Clarke did not do that. Instead he sat him in the police car from shortly after the arrest at 5:47 a.m. until he took him to the police station arriving at the sally port one hour and eight minutes later. Martin's explanation for this delay was that he was arranging to have the vehicle towed.
[23] These passages indicate that the trial judge had concluded that there was a justifiable delay in the police providing the informational component to the respondent.
[24] What appeared to change matters was the discovery of the knife. As the judge continued, at paras. 27-29:
When Officer Clarke arrested Mr. Sookrit at 5:45 a.m. he did not immediately advise him of his right to retain and instruct counsel without delay as he was required to, R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. He waited until he had sat him down in the police car. In the abstract, this might not be a significant departure from the requirement of immediacy. But in this case it was.
This is because when Clarke handcuffed him, he searched him incident to arrest. He found a black folding knife in his pocket, Sookrit actually told him about it. He then asked him why he had a knife. Sookrit answered that it was because he carried a lot of money.
That answer gave Clarke reasonable grounds to believe it was a weapon and he arrested him for that also. But he ought never to have had those grounds. Sookrit had already said that he wanted to speak to a lawyer, at least three times, and now he was under arrest for refusing to provide a breath sample. Clarke did not tell him that he was investigating another charge, a weapons charge, and did not refrain from asking him questions until he spoke to his lawyer even though he had exercised his right before even being advised of it. [Emphasis added.]
[25] The judge appeared to take the view that the police had done nothing wrong in failing to provide the right to counsel after arresting the respondent for refusing to blow but had breached that right only after finding the knife. In other words, the breach did not relate to the original offence for which the respondent had been charged – the breath refusal – but to the finding of the knife. It was at that point that the judge held the officer should have provided the right to counsel because there was a “new investigation”: the possession of the knife. Accordingly, he excluded the respondent’s utterance that he had the knife because he carried lots of money.
[26] It is somewhat surprising that this was an issue because the trial Crown had already informed the judge it was not pursuing the weapons charge. The exclusion of the utterance, therefore, had no direct impact on the charges before the court.
[27] I also pause at this juncture to consider the judge’s position: he found that on finding the knife the police should have given the right to counsel because there was a “new investigation”. The simple possession of the knife was not a criminal offence. It was the respondent’s explanation for why he had it that gave the officer reasonable and probable grounds to find an offence was being committed and to arrest. It was at this stage that the right to counsel had to be given and it was. This point, however, is immaterial.
[28] The utterance was used, however, in determining whether the police had grounds to perform the strip search which took place later at the station. This was a misapprehension of both the facts and the law, and something that I will return to later on in these reasons.
[29] For the purposes of the breath sample, however, the judge’s initial finding was that there was no breach. Mr. Little, in his very capable submissions, argued, in the alternative, that if the judge did make such a finding this was an error because of Aucoin. Accordingly, he submits that I should step in and “fill the gap” by finding a breach of the informational component as an appellate court.
[30] I decline to do so. As noted, the judge found no breach in relation to the breath sample. This was a point argued by defence counsel at trial, in a cursory fashion, and appears to have been rejected by the trial judge based on the facts presented to him. There was no mention of Aucoin by defence counsel in her submissions. It may well have been that the judge felt that it was objectively reasonable for the police to do what they did. On the other hand, it may be, as Mr. Little contends, that the judge failed to consider the issue.
[31] Since there is to be a new trial, both parties will have an opportunity to make submissions on the facts and jurisprudence surrounding the need for a pat-down search and whether Aucoin applies.
[32] I would also add my observation that if there was a breach of the respondent’s s. 10(b) rights by not being informed of the right to counsel immediately, that breach was a minor one. The delay amounted to three minutes and no evidence relating to the refuse charge was obtained as a result of that delay.
[33] As noted, the real significance of this aspect of the case is how it impacted the s. 24(2) analysis, a topic to which I will return.
Did the Trial Judge Err in the Implementational Aspect of s. 10(b)?
[34] The implementational component of the s. 10(b) right requires the police to facilitate a reasonable opportunity for the detainee to contact counsel when he or she has chosen to exercise that right: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429.
[35] This requirement, as recognised by the trial judge, is contextual: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at pp. 10-11. Although the informational component is immediate subject to safety concerns, the implementational component requires facilitation to speak to counsel at “the first reasonably available opportunity”, with the onus on the Crown to demonstrate reasonableness, which is a factual inquiry: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.
[36] The trial judge found that the delay in this case was not reasonable because the police kept the respondent at the roadside for an hour with no steps taken to facilitate his request. In addition, the judge found that the respondent was strip searched without cause and denied his right to contact his father to obtain a lawyer’s number.
[37] As I have already noted, the implementational component is a fact finding task for the trial judge. Situations vary from case to case and for that reason a judge’s findings of fact become extremely significant in determining whether the police properly provided access to counsel.
[38] In this case, the trial judge’s reasons are very troubling and appear to be based on a misapprehension of both fact and law.
[39] First, the judge found the delay to be unreasonable based on P.C. Clarke’s explanation that he was arranging to have the vehicle towed. However, that was not the totality of the evidence. The tow truck arrived at 6:04 a.m., some 20 minutes after the respondent’s arrest. The officer’s actual evidence was that the bulk of the delay was caused by the need to fill out paperwork so that (1) the respondent could be released at the scene and (2) the car’s inventory could be properly recorded.
[40] Secondly, the trial judge cited the denial of the respondent’s request to call his father as one of the factors in finding a breach of the implementational duty. The respondent, at trial, indicated that he had made a request to speak to his father in order get the name of a lawyer. The respondent’s father also testified at trial confirming that he had the contact details of a lawyer which would have been provided to the respondent.
[41] However, the video and police evidence demonstrated that the respondent was content to speak to duty counsel. The officer also noted that when given his right to counsel the respondent told him that he would speak to a lawyer “after”. When questioned at trial, he had no recollection of the respondent asking to speak to his father and told the court that he had made “good” notes on the issue.
[42] However, even though he found the officer to be truthful, the trial judge decided that he believed the respondent on this point. It was, of course, open to him to do so. The judge placed great emphasis on the respondent’s testimony that he wanted to call his father and had been denied the opportunity to do so. According to the judge, the police refusal to allow contact with his father explained why the respondent had indicated that he wanted to use duty counsel when asked by the desk sergeant.
[43] The difficulty with this conclusion is that a very significant piece of contradictory evidence is missing from the analysis: the in-car video filed at trial shows that P.C. Clarke asked for the respondent’s father’s phone number to let him know that his vehicle was being impounded. The respondent replied that he could not remember his father’s number. This evidence impacts significantly on the respondent’s credibility and might well have explained why the police did not call the respondent’s father and why the respondent chose to use duty counsel contrary to his evidence at trial. However, the judge made no reference to this evidence in his reasons.
[44] I appreciate a judge is not required to recite every single piece of evidence (R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 32) and that the judge may have decided that the evidence did not significantly affect the respondent’s credibility. However, in the circumstances of this case, in an application where the onus was borne by the respondent, the trial judge was, at the very least, required to explain why evidence that contradicted the respondent and supported the police account should be disregarded, particularly in light of the judge finding the officer to be truthful.
The Strip Search
[45] Ms. Song argues that the trial judge erred in his approach to the strip search conducted by the police by applying the wrong test. I agree.
[46] The leading case on the subject of strip searches is R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. There, the Supreme Court of Canada set out the parameters of the police common law power to strip search detainees incident to arrest. The court made clear that the strip search must be for evidence related to the grounds for the arrest of the individual or for weapons to ensure the safety of police. A strip search for potential weapons, is, however, qualified by the need for police to initially conduct a pat-down or frisk search which might reveal the presence of a weapon. Alternatively, there might be circumstances which “raise the risk that a weapon is concealed on the detainee’s person”, in which case a strip search would be justified: Golden, at para. 94.
[47] The Supreme Court of Canada, however, did distinguish between strip searches incident to arrest and searches of arrested persons taken into custody. At paras. 96-97, the court made the following comments:
It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells: R. v. Toulouse, [1994] O.J. No. 2746 (QL) (Prov. Div.).
The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27, which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees.
[48] For reasons that are unclear, the trial judge made no reference to Golden despite the submissions made in respect of the decision by both trial counsel.
[49] Instead, the judge applied the test contained in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, the leading case on the Charter compliance and admissibility of evidence obtained pursuant to judicially authorised search warrants, usually in the area of intercepted private communications. The trial judge held that since the police strip searched the respondent because he had been found in possession of a weapon, and that information was impermissibly gleaned through a Charter breach, the police no longer had reasonable and probable grounds to conduct the strip search.
[50] I agree with the Crown that this was the wrong approach. The police were not strip searching the respondent in the hope of discovering additional evidence relating to the weapons count or any other charge. The reasons given for the strip search were, in the words of P.C. Clarke, “to ensure his [the respondent’s] safety as well as the safety of all the officers at the station”. The judge was obliged, as per Golden, to assess the police reasons for the strip search through the lens of safety concerns and deal with those concerns in the circumstances of this case. He failed to do so and, in my view, this was an error.
The Trial Judge Erred in the Assessment of Obtained in a Manner
[51] In this case, the breaches found by the judge occurred after the evidence of refusal to provide a breath sample.
[52] The Supreme Court of Canada in R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, defined the test that links evidence sought to be excluded pursuant to a Charter breach. The court explained that the “whole of the relationship between the breach and the evidence [should] be examined”. If the “temporal connection” was sufficiently strong that the Charter breach was a key part of a single transaction, the evidence might well be subject to a s. 24(2) analysis even though the evidence was not directly obtained through the Charter breach: Goldhart, at para. 40.
[53] In R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, the court held that evidence discovered prior to a breach could fall within the meaning of “obtained in a manner” contained in s. 24(2) of the Charter. At para. 72, Laskin J.A. set out the following guidance when determining whether evidence fell within the purview of s. 24(2) scrutiny, irrespective of the timing of its discovery:
- 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.
[54] Since the evidence of refusal occurred before any Charter breach, it was incumbent upon the trial judge to conduct a Pino analysis and explain why the refusal to provide a sample was sufficiently connected to the later Charter breaches. However, the reasons reveal no such analysis other than a cursory reference that Pino permitted a later breach to exclude prior obtained evidence.
[55] In my view, this error alone would warrant a new trial. In the light of the additional errors described previously, the judge’s failure to conduct a Pino analysis is even more significant.
The Judge Erred in the Application of the Section 24(2) Factors
[56] Even though I find that the above errors are sufficient to dispose of this appeal, I make a further comment on the methodology used by the trial judge to determine whether the evidence should have been excluded pursuant to s. 24(2) of the Charter.
[57] First, the above errors clearly impact the judge’s conclusions with respect to the first two limbs of the test enunciated in R. v. Grant, 2009 SCC 22, [2009] 2 S.C.R. 353.
[58] I would add that in assessing the third limb – whether admission of the refusal to blow would bring the administration of justice into disrepute – I find that the judge erred in relying upon R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, as operating to mitigate the effect of exclusion of the evidence.
[59] In assessing the third limb of Grant, the trial judge offered the following analysis, at paras. 51-52:
Finally, this is a case of refusal to blow. Such an offence is just as serious as if he had failed and then blown over the legal limit. It is the refusal that is the crime: R. v. Suter, 2018 SCC 34. But in assessing the third category of factors in R. v. Grant, 2009 SCC 32, in a case of refusal, while the refusal is still important evidence and favours admission, if the person had not been drinking, the impact on society of excluding the refusal will be less than the exclusion of real evidence that proves the crime. In Suter, although the Supreme Court said that the fact that a driver who refused was not impaired should not be given too much weight on sentencing in refusal cases, it still acknowledged a lesser degree of culpability than that of the person who refuses because of what the sample would show.\
Here Mr. Sookrit testified that he was the designated driver and did not have anything to drink. He did not want to blow because he did not understand what he had done and wanted to speak to a lawyer. His behaviour and his testimony support this. While the impact on the administration of justice of exclusion will be that he is acquitted, this will not be as serious as if he had been drinking.
[60] In my view, the trial judge was in error relying upon Suter when deciding whether to exclude the evidence pursuant to s. 24(2) of the Charter.
[61] First, although the court in Suter indicated, at para. 78, that the “moral blameworthiness” of a sober person who fails to provide a breath sample “differs” from a drunk individual who also refuses, it did not, in any way, suggest that a refusal was in any way less serious an offence than impaired driving. In fact, the following paragraphs made it clear that the effect of non-impairment was not to be overemphasised.
[62] As the court explained, “[t]he act of refusing is the gravamen of the offence. Thus, the seriousness of the offence and the moral blameworthiness of the offender stem primarily from the refusal itself, and not from the offender’s level of impairment”: Suter, at para. 81.
[63] In terms of seriousness, an offender who refuses to provide a breath sample is in an equally egregious situation as an offender whose consumption of alcohol exceeds the impaired limit. Refusing a breath demand lawfully made by a police officer is akin to an obstruction of justice depriving the police, prosecuting authorities and the courts of “the most reliable evidence of impairment”: Suter, at para. 81.
[64] Secondly, the comments in Suter were aimed at the sentencing process and how far the unimpaired driver who refused could rely upon non-impairment to reduce sentence. The court ruled that any reliance on lack of impairment was limited and would only arise if the convicted offender proved on a balance of probabilities that they were not impaired: Suter, at para. 85.
[65] The decision in Suter is not authority for the proposition that excluding evidence of a refusal to blow of an unimpaired driver which results in an acquittal is less likely to bring the administration of justice into disrepute than excluding the over-the-limit readings of an impaired driver. The judge was in error in referring to the case in his analysis of the third Grant limb.
[66] For these reasons, the appeal is allowed and a new trial is ordered.
[67] In accordance with the protocols established in the Scarborough Ontario Court of Justice, the respondent is ordered to attend the Scarborough Ontario Court of Justice on Thursday, 19 December 2019 at 10 a.m.
S.A.Q. Akhtar J.
Released: 3 December 2019
COURT FILE NO.: CR-19-00000026-00AP
DATE: 20191203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRANDON SOOKRIT
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.