Her Majesty the Queen v. Shane Vine
OSHAWA COURT FILE NO.: CR-19-15223-00AP
DATE: 2022 06 01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Meaghan Tait, for the Crown Respondent
Applicant (Respondent on Appeal)
- and -
SHANE VINE
Brian Scott, for the Appellant
Defendant (Appellant)
HEARD: May 20, 2022
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
LEIBOVICH J
[1] On September 5, 2019, the trial judge convicted the appellant of driving while having a blood alcohol level in excess of .08. The trial judge found that the police officer had breached the appellant’s rights under section 9 and 8 of the Charter when he handcuffed the appellant while waiting for the roadside breathalyzer machine to arrive and prior to being arrested and charged. However, the trial judge did not exclude, pursuant to s.24(2) of the Charter, the resulting breath readings and convicted the appellant. Counsel for the appellant submits that the trial judge erred in law when she conducted her s. 24(2) analysis. He challenges her finding that the breach was at the less serious end of the spectrum. The Crown submits that the trial judge committed no legal error and that the trial judge’s finding that the breach was not serious was based on her findings of fact that are entitled to deference.
[2] In my view the trial judge provided well written, thorough reasons but she erred in principle in her assessment of the seriousness of the breach. The handcuffing of the appellant was a serious breach and a new s. 24(2) analysis requires that the resulting breath readings be excluded and the appellant acquitted.
Brief Overview of the Facts
[3] On April 7, 2018, at approximately 2:20 am, Officer Siddiqui stopped the appellant’s car. As a result of his interactions with the appellant and his observations, the officer formed a suspicion that the appellant was operating a motor vehicle in excess of 80 mg per 100 millilitres of blood. The officer had the appellant exit the car. P.C. Siddiqui read the appellant the demand to blow into an approved screening device (ASD) but he did not have the unit on hand. The officer requested that another officer bring an ASD to his location.
[4] There is no dispute that officer Siddiqui offered the appellant to sit in the back of the police cruiser while they waited for the ASD to arrive. However, Officer Siddiqui and the appellant provided different evidence about whether the appellant was then handcuffed.
[5] P.C. Siddiqui testified that it was cold and frigid outside and they were on a live highway. He wanted them to both be in a warm place. He testified that he asked the appellant if he wanted to stay in the cruiser or wait outside. The appellant said that he wished to wait in the cruiser. P.C. Siddiqui testified that he sat in the front seat and he was able to communicate with the appellant through the divider between the back and front seats. The ASD subsequently arrived. He asked the appellant to exit the car and P.C. Siddiqui administered the test and the appellant registered a fail. The officer then placed the appellant under arrest and handcuffed him.
[6] P.C. Siddiqui was cross-examined on whether he handcuffed the appellant when he placed the appellant in his cruiser prior to arresting him. The officer denied that:
he told the appellant that there was safety concern and that he had to be handcuffed before being placed in the cruiser;
the appellant was handcuffed at any point prior to his arrest; and
he had to hold the appellant with one hand and place the approved screening device to the appellant’s mouth with the other hand, because the appellant was handcuffed.
[7] The appellant testified that the officer asked him if he wanted to stay in the car while they waited because it was cold. The appellant responded yes. The officer said that for safety reasons he had to handcuff the appellant. The appellant said he understood. The appellant said that at the time he weighed 215 pounds and was five foot six. The car was tiny. He was in the back passenger seat for 15-20 minutes handcuffed. When the instrument arrived, the appellant had to figure out how to get out of the car because he was still handcuffed. He exited the car and was still handcuffed. The officer held the appellant’s shoulder on one side and held the screening device with the officer’s other hand. The appellant who was still handcuffed, leaned forward trying to breathe into the instrument as hard as he could. He failed the test and was placed under arrest.
The Trial Judge’s Reasons
[8] The trial judge accepted the evidence of the appellant over that of the officer. She found that the officer’s recollection of that night was imperfect. On the other hand, she found that the appellant had good reason to remember the night’s events. She said that it was a “very close call for me but on the whole I accept on a balance of probabilities the evidence of Mr. Vine that he was handcuffed prior to the arrest.” However, the trial judge found that officer Siddiqui did not lie, merely that he did not recall the sequence of events:
Mr. Vine did not ask me to find that Officer Siddiqui was lying or deliberately misleading the court. I agree, I have no concerns about credibility, but he may have been honestly mistaken in his recitation of the exact sequence of events as in R. v. Mahipaul, 2018 ONCJ 339, at paragraph 18.
[9] And then later she said:
I have found he was mistaken in his recollection of the sequence that night but not that he lied.
[10] The trial judge found that the appellant’s rights were breached in two respects:
a) There was a breach of s. 8 of the Charter on the basis that the manner of search (the breath sampling) was unreasonable in that it was conducted while the appellant was handcuffed; and
b) There was a breach of s, 9 of the Charter on that basis that the detention was unlawful in that the police exceeded their powers in handcuffing the appellant unreasonably during his detention.
[11] No issue is taken on appeal with respect to the trial judge’s findings regarding the s. 8 and s. 9 breaches.
[12] The trial judge conducted an analysis pursuant to R. v. Grant. She looked at:
(i) the seriousness of the Charter-infringing state conduct;
(ii) the impact of the infringements on the accused’s Charter protected interests, and
(iii) society’s interest in the adjudication of cases on their merits.
[13] She found that with respect to the first factor she would place the breach “somewhere in the middle of the scale, but towards the less serious end” and found that the factor slightly favoured admission.
[14] The trial judge found that:
the officer demonstrated conscientious behaviour in making the appropriate demands and identifying concerns for everyone’s safety and comfort on the cold highway.
He promptly advised the driver of the reasons for the stop;
He promptly gave the driver his rights to counsel;
There is no evidence of any punitive or coercive conduct by the officer;
He was respectful to the appellant;
The officer made a mistake about his legal authority to restrain upon investigative detention; and
There is no evidence that the officer in this case intended to cause pain or discomfort.
[15] The trial judge accepted the Crown’s concession that the impact of the infringements on the accused’s Charter-protected interests favoured exclusion. She found that the third factor, society’s interest in the adjudication of cases on their merits, favoured the admission of the evidence. The trial judge conducted the required overall balancing of the factors. She found that this was a close case. She found that the breach resulted from a mistake by an inexperienced officer and that, despite the significant concern for the impact of handcuffing on individual liberty and dignity, she was “not satisfied that admitting the evidence would send a message that this conduct is permissible and thereby bring the administration of justice into disrepute.”
Law and Analysis
[16] A trial judge's decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination; R. v. Cole, 2012 SCC 53, at para. 82; R. v. Cote, 2011 SCC 46, at para. 44; R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 72. R v McGuffie, 131 OR (3d) 643, 2016 ONCA 365 at para. 64. R. v. Manchulenko, 2013 ONCA 543, at para. 43.
[17] The s. 24(2) analysis is contextual and must account for all the circumstances. The key to the s. 24(2) analysis is the balancing of the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on the merits: R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 71.
[18] As stated earlier, the trial judge conducted a thorough analysis of the three Grant factors and then conducted, as required, a balancing of those factors. However, she erred in law in her analysis to the first Grant factor, the seriousness of the Charter breach. She erred in two main respects:
a. She found that the police officer’s other Charter compliant behaviour mitigated the seriousness of the breach; and
b. She found that the officer’s decision resulted from his mistaken understanding of the law in the absence of any evidence in that regard and that this mistaken belief mitigated the seriousness of the breach.
Other Charter Compliant Behaviour
[19] The trial judge relied on the officer’s Charter compliant behaviour when she addressed the seriousness of the Charter breach. She said:
He showed an awareness of the need for promptly advising the driver of the reason for the stop and for prompt right to counsel as a potential delay was apparent in obtaining the approved screening device.
[20] The trial judge did not have the benefit of the Supreme Court of Canada’s recent decision in R. v. Reilly, 2021 SCC 38 where the Supreme Court of Canada said that such behaviour is not mitigating. Moldaver J. on behalf of the court stated:
We agree that the trial judge erred in his analysis under s. 24(2) of the Canadian Charter of Rights and Freedoms by considering Charter-compliant police behaviour as mitigating.
[21] The Crown submitted that R. v. Reilly should be restricted to considering other Charter compliant behaviour by other officers, since that was the case at trial in R. v. Reilly[^1]. I do not read any such limitations in Moldaver J’s pronouncement set out above nor do I see why there should be. The police are supposed to follow the law. They do not get extra credit for doing so. As Di Luca J. recently wrote in R. v. Hayatibahar 2022 ONSC 1281 at para. 218:
I note that in addressing the seriousness of the Charter infringing conduct, the court does not balance the police misconduct against what the police did correctly. The fact that the police did some things in accordance with the Charter does not mitigate the seriousness of their misconduct, see R. v. Reilly, 2021 SCC 38
The Reason for the Breach
[22] The trial judge found that the breach was the result of the officer’s misunderstanding of his investigation detention powers. She said:
I find that the inexperienced officer exceeded the scope of his authority unintentionally.
Officer Siddiqui made a mistake about his legal authority to restrain upon investigative detention even when a person is kept in a cruiser.
[23] The trial judge was correct in noting that the officer was inexperienced. However, there was no evidence that the officer was mistaken about his legal authority. The officer testified that he did not handcuff the appellant prior to arresting him. The appellant’s version of events was fairly put to him in cross-examination and the officer denied it. Accordingly, no explanation for the pre-arrest handcuffing was provided by the officer at trial. The trial judge, in her reasons, remarked on the difficulty in assessing the officer’s motivations. She said:
It is difficult to assess the officer’s motivations in this case and the extent of legal knowledge when I have no evidence as to his training or understanding of the law on detention pre-arrest. He was not asked about his understanding of the law on detention and use of handcuffs. I do know that he was a fairly new officer. He started with the police service in September 2016, about a year and a half before this offence. I do not know any details of his experience with impaired driving or detention and arrest.
[24] These comments from the trial judge do not mesh with her conclusion that the officer’s decision to handcuff the appellant emanated from a legal mistake as opposed to some other reason.
[25] The appellant testified that the officer told him that the handcuffing was due to safety concerns. However, as the Crown properly conceded on appeal, there was no evidence of any safety concerns that required handcuffing the appellant. This distinguishes this case from the case of R. v. Virk 2018 ONCJ 752, which was relied upon by the trial judge. In R. v. Virk, the trial judge found that Mr. Virk’s failure to follow routine instructions was a cause for concern. I also note that any possible safety concerns of putting the appellant in the back seat uncuffed (which I find did not exist) evaporated when the appellant was removed from the car. Yet, the appellant remained handcuffed while the officer held him and administered the roadside breath test.
[26] In addition, even accepting that the officer did not deliberately set out to violate the appellant’s rights, this simply makes the breach less aggravating not mitigating. As stated by Jamal J.A. (as he then was) in R. v. Thompson, 2020 ONCA 264, [2020] O.J. No. 1757 at para. 88:
Even though the police did not deliberately set out to violate the appellant's rights under s. 9, their failure to appreciate their duties led to this result: see Wong, at para. 63.
Fresh 24(2) Analysis
[27] In my view, a fresh analysis shows that the breath readings should be excluded pursuant to s. 24(2) of the Charter.
1) The seriousness of the Charter-infringing state conduct
[28] The task with respect to this factor is to situate the state conduct on a scale of culpability. In assessing the seriousness of the conduct, the Supreme Court in R. v. Grant at paras. 74 and 75 provided the following guidance:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[29] The state conduct was serious. The officer handcuffed the appellant prior to his arrest when he placed him in the back seat of the cruiser and kept him handcuffed while he blew into the instrument. There was no reason for doing so. The appellant testified that the reason articulated by the officer at the scene was for safety purposes, yet it is agreed by all that there were no safety reasons that required the appellant to be handcuffed in the car or when he was removed from the car. I agree that the decision to ask the appellant if he wanted to sit in the cruiser was for a benevolent purpose, so that both the officer and the appellant could get out of the cold. However, the officer kept the handcuffs on the appellant after he removed him from the cruiser. The officer was relatively junior but, without any evidence about his training or understanding of the law in this area, this factor does not assist the analysis. There is no evidence of bad faith but there is also no evidence of good faith.
[30] Counsel for the appellant submitted on appeal that handcuffing pre-arrest in these situations is a concern although stopped shorting of saying that there is a systemic problem. On the record before me all that truly can be said is that this issue is not uncommon in alleged impaired driving cases, and the “the court would do well to disassociate itself from this overreach by law enforcement,” of handcuffing detainees pre-arrest without cause; R v McColman, 2021 ONCA 382.
[31] The Charter infringing conduct was serious. This line of inquiry tips towards exclusion.
2) The impact of the breach on the Charter-protected interests of the accused
[32] The second line of inquiry demands a consideration of the seriousness of the breach from the perspective of the accused. The impact of a breach may range from fleeting and technical to profoundly intrusive. The Crown properly conceded in the court below and before me that this line of inquiry points towards exclusion. I adopt the comments by Green J. in, a similar case, R. v. Ramnath 2018 ONCJ 853 at para. 54:
The scope of justifiable police conduct will be determined by what is reasonably necessary in the circumstances of these interactions bearing in mind the expectation that it is to be a minimal intrusion on a detainee's liberty interests before they have been arrested. State agents applying handcuffs to a detainee is an inherently coercive physical restraint and a significant interference with a person's liberty and human dignity. Mr. Ramnath was coherent, polite and cooperative. Leaving him in handcuffs throughout his interactions with the police was both unjustifiable and needlessly degrading. [emphasis in the original]
3) Society's interest in the adjudication of the case on the merits
[33] Excluding this evidence will lead to the appellant being acquitted. “It must be remembered that the exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, "thus bringing the administration of justice into disrepute": Grant, at para. 81” R. v. Herta, 2018 ONCA 927, at para. 72.
[34] This factor clearly weighs towards inclusion.
4) The balancing
[35] The s. 24(2) analysis requires a balancing of all these factors and all these circumstances, there are no automatic rules, there is no mathematic formula. As stated by the Court of Appeal in R. v. Thompson, 2020 ONCA 264 at paras. 106 and 107:
The final step under the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36.
If, however, the first two inquiries together make a strong case for exclusion, the third inquiry "will seldom if ever tip the balance in favour of admissibility": Le, at para. 142; Paterson, at para. 56; and McSweeney, at para. 81.
[36] The breath readings are reliable evidence. Excluding it will result in the appellant’s acquittal. There is a public interest in “combatting drinking and driving cases;” R v McColman, at para. 89. However, despite this, the combination of all the factors and all the lines of inquiry require that the evidence be excluded. The handcuffing of the appellant pre-arrest was completely unnecessary and degrading. The court cannot condone this conduct. The admission of the evidence in this case would bring the administration of justice into disrepute. The evidence is excluded.
Conclusion
[37] The appeal is allowed, the conviction is set aside and the appellant is acquitted.
Justice H. Leibovich
Released: June 1, 2022
OSHAWA COURT FILE NO.: CR-19-15223-00AP
DATE: 2022 06 01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant (Respondent
on Appeal)
– and –
SHANE VINE
Defendant (Appellant)
REASONS FOR DECISION on summary conviction appeal
LEIBOVICH J.
Released: June 1, 2022
[^1]: The Crown also seeks to rely on R. v. Manchulenko as authority that the Court is allowed to consider Charter compliant behaviour. With respect, the “fresh start” prodigy of cases has no application to the facts in this case.