COURT FILE NO.: CR-18-07567
DATE: 20210513
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NATERAM BABULAL
Defendant
Tony Vanden Ende, for the Crown
Chris Rudnicki, for the Defendant
HEARD: March 19, 2021
REASONS FOR DECISION
DE SA J.:
Overview
[1] The Appellant was arrested for impaired driving and held in custody for 6 hours after the completion of his breath test. He submits that this detention was unlawful and violated his section 9 right against arbitrary detention.
[2] The Appellant maintains that the trial judge erroneously relied on the Cayer wording of “not capricious, despotic, or unjustifiable” in finding the detention was not arbitrary: R v Cayer (1988), 1988 CanLII 9879 (ON CA), 66 CR (3d) 30, [1988] OJ No 1120 (Ont CA).
[3] I do not agree that the trial judge applied the wrong test. The trial judge made clear in his reasons that the assessment of whether the Appellant’s detention was reasonable is based on a consideration of all the circumstances. He concluded that the police decision to continue holding the Appellant was reasonable given his state of intoxication and the risks posed by his release.
[4] On the record before me, I see no basis to interfere with his decision. The appeal is dismissed. The reasons for my decision are outlined below.
Summary of Facts
911 Call and Arrest
[5] On August 28, 2018, shortly after midnight, Franco Staffieri (Staffieri) was driving northbound on Highway 400, approaching Highway 7. He observed the Appellant driving erratically, slowing to approximately 50 kilometers per hour before speeding back up, swerving into other lanes, and narrowly missing another vehicle while attempting to merge. Staffieri followed the Appellant off the highway and called 911.
[6] Constables Mohammed and Yuen both responded to Staffieri’s 911 call. The officers used the Appellant’s licence plate information to locate the Appellant’s home address and arrived just as the Appellant was pulling into his driveway shortly after 12:30 a.m.
[7] Const. Mohammed approached the driver’s side door and knocked on the window. The Appellant started to “flick” the door handles, struggling to get out of the vehicle. After two or three attempts, he opened the door. The Appellant was wearing sunglasses as he opened the door. As he exited the vehicle, he was off-balance, unsteady on his feet and needed to lean on his car for support. Const. Mohammed believed that the Appellant was drooling. Const. Yuen could detect a faint odour of alcohol.
[8] At this point, a third officer, Constable Ma, arrived on scene. At his direction, Const. Yuen read the Appellant a standard field sobriety test (SFST) demand. The Appellant refused the demand. Police allowed the Appellant to walk to the front door and ring the doorbell. He appeared wobbly as he walked up the stairs, holding on to the rail for support. He had difficulty ringing the doorbell, pressing the wall a few times before succeeding.
[9] Constables Yuen and Ma arrested the Appellant for impaired operation of a motor vehicle at 12:48 a.m. After the Appellant was placed in the cruiser, his wife came out of the residence and spoke with Const. Ma, asking what was going on. He told her that the Appellant was under arrest and would be brought to the station. He asked her whether the Appellant had a lawyer who could be contacted; she said he did not.
Processing the Appellant at 4 District
[10] The police arrived with the Appellant at 4 District police station at 1:02 a.m. The Appellant was paraded at 1:05 a.m. He was lodged in the cells at 1:16 a.m., still displaying some unsteadiness on his feet.
[11] Const. Ma attended the cells at 1:20 a.m., realizing he had forgotten to read the Appellant the breath demand. He read the demand to the Appellant at 1:24 a.m. The Appellant acknowledged the demand. The Appellant was then placed on the line with duty counsel and brought in for his breath test at 1:40 a.m.
[12] Sergeant Adamson was the acting staff sergeant at 4 District when the Appellant was first paraded at 1:05 a.m. According to Sergeant Adamson, the Appellant was belligerent and “clearly intoxicated”. Sergeant Adamson inquired as to his readings because she wanted to ensure he was not higher than the level at which policy dictates the detainee is to be taken to the hospital. At 2:15 a.m., the Appellant’s readings were at 297 and 280 milliliters of alcohol in 100 milligrams of blood.
[13] Sergeant Adamson determined that the Appellant’s ongoing detention was necessary. She testified that she was not confident the Appellant would understand the release forms because of his level of intoxication. Given his belligerent behavior during the booking process, his prior convictions for impaired, and his high level of intoxication, she also had concerns that he was at risk of repeating the offence.
[14] At 2:40 a.m., the Appellant was brought to the desk in the cells area to be served with several other court documents. The Appellant was still exhibiting obvious signs of impairment. Constable Ma explained the documents to the Appellant and asked him to sign acknowledging receipt and understanding, where necessary. These documents included a CCTV notice, a notice of increased penalty, information on the court process, a notice in relation to his test results, and a notice of his administrative driver’s licence suspension. The Appellant appeared to understand the documents and signed where necessary, except the notice of increased penalty, which he did not sign because he did not agree with it.
[15] At 4:20 a.m., Sergeant Adamson was relieved by her colleague, Staff Sergeant Heatley. She explained her reasoning for holding the Appellant to Sgt. Heatley when he took over. Sgt. Heatley did not check on the Appellant himself but adopted her reasons and continued the Appellant’s detention. Shortly after 6:00 a.m., he asked Const. Ma to go see the Appellant in cells to assess his sobriety. After checking in on the Appellant, Const. Ma told him that in his opinion, the Appellant was still unable to agree to a promise to appear.
[16] At 7:30 a.m., Sgt. Heatley went to see the Appellant for himself. He was satisfied that he could understand his release conditions. He called the Appellant’s wife and left her a message to come pick him up. She returned his call around 7:50 a.m. and agreed to attend the station. She arrived around 8:20 a.m., and the Appellant was released on a promise to appear shortly thereafter.
[17] In cross-examination, Sgt. Heatley acknowledged that he did not call the Appellant’s wife before 7:30 a.m. He was asked what specific factors he considered in deciding to continue the Appellant’s detention. In addition to the comprehension issue, Sgt. Heatley cited concern for the Appellant’s own personal safety. He was also concerned that, if there was another vehicle at home and the Appellant was not being watched, the Appellant might repeat the offence.
[18] At the time of the Appellant’s release, Sgt. Heatley estimated that the Appellant’s BAC would be around 190 ml/mg, based on an elimination rate of 15 milliliters of alcohol per hour. He agreed that this was still a very elevated reading. He testified that his earlier safety concerns no longer troubled him since the Appellant’s wife appeared to be able to take care of him.
The Appellant’s Evidence
[19] The Appellant testified that after arriving home from work, he got changed and began work on his car in his garage. He started working on the vehicle around 6:30 p.m. While he was fixing his car, he started drinking beer. He could not recall how many beers he consumed. He finished drinking around 10:30 p.m. He decided to take his vehicle for a test drive.
[20] The Appellant attributed the indicia of impairment observed by the officers to spasms and cramping he was experiencing from his treatment for Graves disease. He was wearing sunglasses because his eyes were sensitive to bright lights. He was fumbling with the door handle because it was dark and the officer had shone a light in his eyes.
[21] The Appellant testified that after he was served with various documents at the booking desk around 2:40 a.m., no officer came to see him in his cells until Sgt. Heatley arrived at 7:30 a.m. to release him. He understood the documents and signed those required except the notice of increased penalty, which he did not sign because he did not agree with it.
The Reasons for Conviction
[22] The trial judge dismissed the Charter applications, rejected the Appellant’s evidence, and convicted him on both counts.
[23] On the ‘over-holding’ issue, the trial judge found that the Appellant had been held at the station for approximately six hours following his breath test. However, the trial judge concluded that both officers conducted an ongoing assessment of the accused’s fitness for release based on relevant, objective criteria. Given the high degree of intoxication and the accused’s high BAC, the trial judge found the officers reasonably waited appropriate periods of time in between release checks.
[24] The trial judge concluded that the officers were entitled to continue to detain the Appellant in the circumstances. In dismissing the stay application, the trial judge also found there was no evidence that the detention of Mr. Babulal was “capricious, despotic or unjustifiable.”
Analysis
“Over-holding” and Arbitrary Detention: General Principles
[25] In the context of an ‘over .80’ charge under s. 253(1)(b) of the Criminal Code, after a breath demand has been made, officers are authorized to detain an arrestee at the police station for so long as is reasonably necessary to administer the breath test.[^1]
[26] Once the breath test is completed, and where the officers do not propose to bring the detainee before a justice for a show cause hearing, the lawful authority to detain on the basis of the breath demand expires and the officers must release the person “as soon as practicable”: Criminal Code section 498(1).
[27] Officers may only continue the detention if they believe, on reasonable grounds, that detention is necessary in the public interest having regard to all the circumstances, including the need to establish the detainee’s identity, secure or preserve evidence, prevent the continuation or repetition of the offence, or to ensure the safety of any victim or witness: Criminal Code section 498(1.1). As in all cases where reasonable and probable grounds are required, they must both be subjectively held and objectively reasonable.
[28] In making this decision, section 493.1 mandates that the officer “give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances”.
[29] In this case, the Appellant acknowledges that the officers had the “subjective” belief that his detention was necessary. However, he submits that there was no “objective” basis for his detention having regard to all the circumstances. The Appellant relies primarily on the fact that his wife was at home and was available to pick him up from the police station. According to the Appellant, there was no danger posed to the public or his own safety by releasing the Appellant to his wife.
[30] Further, since the Appellant was deemed by police to have the requisite capacity to sign various court documents at 2:40 a.m., he asserts that the police cannot credibly claim he lacked the requisite capacity to review and sign the promise to appear at 2:40 a.m. Their failure to provide the Appellant with the opportunity to sign the release at the same time reflects a complete disregard for the Appellant’s liberty.
[31] As for remedy, the Appellant takes the position that a lack of judicial condemnation for this type of behavior has resulted in a culture of complacency with regards to over-holding in York Region. In the circumstances, a stay is necessary to send the proper message that the rights of a detainee are to be properly respected.
[32] I agree with the Appellant that in the “over-holding” context, the police decision to hold the accused in custody must be reasonable on an objective review of the circumstances. As noted above, the police must have reasonable grounds to believe the detention is necessary and in the public interest having regard to all the circumstances.
[33] Durno J. in R. v. Price, 2010 ONSC 1898, at para. 93, outlined various considerations that can be taken into account by the police in exercising this authority including the accused’s blood alcohol level, the availability of another person to pick up the accused, whether the accused was charged with impaired operation before, his or her level of comprehension, whether the accused has a related criminal record, whether the accused had outstanding charges, and his or her attitude at the time.
[34] Deciding when and under what circumstances an accused can be released inevitably requires an exercise of judgment on the part of the police. The question is not whether the reviewing justice would have made the same decision the officer did. It is whether the decision to detain was a reasonable exercise of their authority having regard to all the circumstances.
[35] In this case, the fact that the Appellant’s wife was available to pick him up is clearly a relevant consideration. However, when dealing with an accused who is highly intoxicated, the police must still be alive to the concern that he may cause harm to himself or others. R. v. Sapusak, [1998] O.J. No. 4148 (C.A.); R. v. Laroque, 2018 ONSC 6475, at para. 45; R v Kavanagh, 2017 ONSC 637; R. v. Brar, 2020 ONSC 4740, at paras. 36-45; R. v. Hardy, 2015 MBCA 51, at paras. 19-21. I agree with the statements of Justice Heeney in Kavanagh, supra, at para. 41 (cited by the trial judge):
[T]he suggestion that an accused with a high blood alcohol content can simply be off-loaded by the police to a civilian is open to valid debate. …If an accused with a high blood alcohol content were released to a friend or family member, and then fell and seriously injured himself due to his alcohol consumption, the police should have a valid concern as to whether they might be held liable for his injuries. Even worse would be the situation where the accused chose to get behind the wheel of a different vehicle after his release, notwithstanding the efforts of his chaperone.
See also: R. v. Babulal, 2020 ONCJ 11, para. 36.
[36] In this case, both Staff Sgt. Adamson and Staff Sgt. Heatley conducted an ongoing assessment of the Appellant. Given the Appellant’s state, the officers were concerned the Appellant would not be able to comprehend the release forms. In addition, given his belligerent behavior, and his extreme level of intoxication, both officers were concerned that if released, he could repeat the offence. Staff Sgt. Heatley also expressed concerns that Mr. Babulal could injure himself. On the evidentiary record, there is clearly a basis for such concerns.
[37] I also disagree with the Appellant that the trial judge applied the wrong test. While he noted that “arbitrary” has been described and would include “capricious, despotic or unjustifiable” behavior, he made clear that the assessment of whether the Appellant’s detention was reasonable was based on an objective review of all the circumstances. The trial judge explained, at para. 44:
The evidence shows that both officers conducted an ongoing assessment of the accused’s fitness for release based on relevant, objective criteria. Given the high degree of intoxication and the accused’s high BAC they reasonably waited appropriate periods of time in between release checks. Staff Sgt. Heatley explained that Mr. Babulal was otherwise checked by an officer every 30 minutes to ensure his safety and comfort. When Mr. Babulal was fit for release, the Staff Sgt. called his wife to assist. The accused was released despite the fact that the Staff. Sgt. estimated he still had a high BAC because he was able to understand the release process and his wife was available to address the other concerns posed by his condition. There’s no evidence that the detention of Mr. Babulal was capricious, despotic or unjustifiable. There’s no evidence that Mr. Babulal’s rights under s. 9 of the Charter were breached.
[38] Finally, I do not agree that the evidentiary record here suggests a systemic pattern of misconduct on the part of the police as the Appellant suggests.
[39] The appeal is dismissed.
[40] From the materials filed on the fresh evidence application, my understanding is that the Appellant is at high risk of suffering serious complications if he were to contract Covid-19 in custody. In addition to Graves’ disease, the Appellant has been diagnosed with high blood pressure, high cholesterol, diabetic risk, and chronic anxiety.
[41] In the circumstances, I am prepared to delay the Appellant having to turn himself into custody to serve his sentence until it is safe to do so.
[42] The parties can contact me regarding the appropriate terms and timing for his surrender into custody.
Justice C.F. de Sa
Released: May 13, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NATERAM BABULAL
Defendant
REASONS FOR DECISION
Justice C.F. de Sa
Released: May 13, 2021
[^1]: This was the provision under which the Appellant was charge; the section has since been repealed and replaced with s. 320.14(1)(b).