COURT FILE NO.: CR-21-78
DATE: 20220816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PATTI GAFFNEY-MYLES
Defendant
Roger Dietrich, George Christakos, for the Crown/Respondent
James Dean, Chris Marquis, for the Defendant/Applicant
HEARD: June 13, 2022
TRANQUILLI J.
Introduction
[1] This pretrial application focuses our attention on the events between a police officer’s arrival at the chaotic scene of a motor vehicle collision and his warrantless arrest of the applicant for impaired driving six minutes later.
[2] The applicant raises several alleged Charter breaches arising from the circumstances of her arrest. The applicant seeks either a stay of proceedings or exclusion of breath sample evidence because of alleged breaches of her section 7, 8, 9, 10(a) and (b) Charter rights.
[3] The material issue is whether the police officer had reasonable and probable grounds to arrest the driver for impaired driving. In particular, does the court accept he had an honest subjectively held belief in grounds for making that arrest at the time?
[4] The voir dire proceeded with the sole testimony of the arresting officer, OPP Constable John Heene.
Overview
[5] On April 23, 2019, a bystander alerted an Ontario Provincial Police constable on general patrol to attend a “really bad” collision that had just happened nearby.
[6] OPP Constable John Heene arrived at a “chaotic scene” moments later at the intersection of Nairn Road and Oxbow Drive in Middlesex Centre at 1:45 pm.
[7] There is some debate about the officer’s subjective appreciation of the events as they unfolded after his arrival, which I will return to later in my reasons. However, there does not appear to be any controversy about the following sequence of events.
[8] Constable Heene saw evidence of a serious impact between two vehicles. One vehicle was in the middle of the intersection with heavy damage to its front end and one corner. There were people and debris “everywhere.” A toddler lay on the ground crying at one side of the road. The officer immediately attended to the three-year-old child and dispatched for emergency services. As the officer walked towards the child, he noticed a vehicle stopped on the northbound shoulder of the intersection. It appeared to have been involved in the collision. He yelled across the road to the bystanders to ask who was in the other vehicle. An unknown witness pointed to a woman on the side of the road and identified her as the driver. An unknown person also told the officer no one else was in the other vehicle.
[9] It began to rain. The child had gone quiet and was moaning. The officer was concerned the child was going into shock and he wanted to move him out of the weather. As he was walking to his cruiser with the child in his arms, a woman approached and told him she had been drinking. She was standing between six and eight feet away from him. He could smell the odour of alcohol. The officer told her he wanted to deal with the child’s injuries first. As he placed the child onto the front seat of his cruiser, the woman uttered words to the effect that she wanted to kill herself.
[10] She then made to leave the scene, walking quickly away from the accident down Oxbow Drive. The officer left the toddler in his cruiser under the care of bystanders and followed the woman. He stopped her by placing his hand on her arm. He detected no signs of unsteadiness or dishevelment.
[11] She initially pulled away from his grasp but then obeyed his direction to stop. He placed her under arrest for impaired driving at 1:51 pm. He stayed with the accused on the road where he had apprehended her on Oxbow Drive while they awaited arrival of further first responders.
[12] Nine minutes later, at 2:00 pm, the officer advised the applicant of her rights to counsel and delivered the caution. At 2:07 pm, the officer made the breath demand. Constable Heene transferred custody of the applicant to a partner, who transported her to hospital for a mental health assessment. Constable Heene followed in his cruiser and arranged for the breathalyzer technician to attend at the hospital. On that journey, the driver made a further suicide gesture through attempting to strangle herself with a seatbelt in the rear of the cruiser. The officers stopped their cruisers and intervened. They completed the journey with officer Heene seated in the rear of the cruiser with the applicant.
[13] Upon arrival at the hospital, Constable Heene delivered rights to counsel again. At 3:53 pm the driver provided breath sample that registered 83 mg of alcohol in 100 mL of blood. At 4:16 pm, the driver provided a breath sample that registered 78 mg of alcohol in 100 mL of blood.
[14] As a result, Ms. Gaffney-Myles stands charged three offences: 1. operation of a motor vehicle with a blood alcohol concentration equal to or in excess of 80mg of alcohol in 100 mL of blood; 2. causing bodily harm while so operating a conveyance in that condition; and 3. dangerous operation of a conveyance causing bodily harm, contrary to sections 320.14(1)(b), 320.14(2) and 320.13(2) of the Criminal Code.
[15] The judge-alone trial of this matter is set to commence September 6, 2022. Date, time, jurisdiction and identity are admitted.
The Application
[16] The defendant brings this application pursuant to s. 24 of the Charter for an order either staying the proceeding or excluding the breath sample evidence because of alleged breaches of sections 7, 8, 9 and 10(a) and (b) of the Charter.
[17] The applicant did not submit a factum or authorities in support of her application. The court has nevertheless done its best to give full hearing and consideration to her application.
[18] The applicant submits her section 7 rights were violated as the officer lacked the requisite grounds to place her under arrest. Similarly, the officer only had grounds to require a roadside screening test, as opposed to placing her under arrest for a breath demand, thereby violating her section 9 rights, which was then further compounded by a 16-minute delay in making the breath demand. Her section 10 rights were violated through the failure to inform her of her right to retain and instruct counsel without delay and the reasons for her continued detention prior to the breath demand. The applicant submits the breath samples obtained as a result of her unlawful and arbitrary arrest should be excluded as a result of a breach of section 8 of the Charter.
[19] At the conclusion of the hearing the applicant submitted her focus was on the ostensible breach of her section 7, 8 and 9 Charter rights at the time of her arrest. The applicant submitted the officer’s testimony showed he lacked the subjective grounds to arrest her. This is based upon the applicant’s contention the officer conceded in his testimony that he did not in his mind identify the applicant as the driver at the time he pursued her down the road. The court understood the parties to agree that if it were found that there were reasonable and probable grounds to arrest the applicant, that this would answer the question as to whether there was an arbitrary detention under s. 9 of the Charter.
[20] The respondent Crown submits the totality of circumstances demonstrates the arresting officer had honestly held subjective grounds at the time of the arrest and that this subjective belief was justified from an objective point of view. To the extent there was any inconsistency in his evidence as to the formation of his subjective belief in grounds to arrest the applicant, it was not material. Since there were reasonable grounds to arrest and issue the breath demand, there was no arbitrary detention. The Crown contends the rights to counsel, caution and breath demand were made as soon as practicable and when they could be done so safely in the circumstances.
[21] The applicant submitted there were inconsistencies in the officer’s evidence such that perhaps the application should be adjourned for further discussions between counsel. The Crown acknowledged there may an issue with the officer’s evidence but submitted it would be best to leave the evidence with the court. The Crown proposed to deal with any consequences of inconsistencies in the officer’s evidence through the section 24(2) Charter analysis. In light of the pending trial date, this application therefore proceeded to argument and was left with the court for decision.
Issues
[22] The parties agree this was a warrantless arrest and seizure of the applicant’s breath samples such that the evidentiary and legal onuses are on the Crown, to be decided on a balance of probabilities.
[23] There is a wealth of precedent that frames the analysis of whether the Crown has satisfied its burden to demonstrate it had reasonable grounds to believe a person operated a conveyance (motor vehicle) while the person’s ability to operate it was impaired to any degree by alcohol. Much of that precedent is based upon now repealed s. 254(3) of the Code. Given the similar wording between then s. 254(3) and the current s. 320.28(1) of the Code, it was uncontroversial on this application that the precedent under the previous statutory provisions informs the approach to be followed in this application. I therefore find that the test endorsed in decisions such as, for example, R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.), R. v Censoni, [2001] O.J. No. 5189 (S.C.J.), R. v. Leppanen, [2015] O.J. No. 2323 (S.C.J.) remain relevant and applicable to the analysis.
[24] In closing argument, the applicant emphasized the crux of her application turned on the grounds for her arrest. However, I was remiss in confirming whether the applicant formally withdrew her application regarding an alleged breach of her section 10 Charter rights. Therefore, these reasons will also address those issues.
[25] The issues for determination on this application are:
Did Constable Heene have a subjective and honestly held belief the applicant operated her motor vehicle while her ability to operate it was impaired by alcohol;
Would a reasonable person in the officer’s position, on a totality of the evidence, conclude there were reasonable and probable grounds for the arrest and breath demand;
Was the applicant informed promptly of the reasons on her arrest;
Was the applicant informed of her right to retain and instruct counsel without delay upon her arrest;
In the event of a breach of the applicant’s Charter rights, what is the appropriate remedy?
I now address each of these questions in turn.
Analysis
1. Did Constable Heene have a subjective and honestly held belief the applicant operated her motor vehicle while her ability to operate it was impaired by alcohol?
[26] Constable Heene had been a police officer for about seven years at the time of the incident. He testified with the benefit of his duty book notes to refresh his memory. I found him to be direct and responsive in his answers, with no indication of embellishment, evasion or defensiveness. He volunteered what he could not independently recall about his investigation of the collision and readily acknowledged the details of the incident he could not recall.
[27] Constable Heene testified he had the following four subjective grounds to arrest the applicant when he apprehended her at 1:51 pm on Oxbow Drive: 1. She was identified to him as the driver of the other vehicle; 2. She then approached him and volunteered that she had consumed alcohol while he was attending to the injured child; 3. He could smell alcohol when speaking with her at the scene; and 4. the collision.
[28] The officer explained that an unknown bystander pointed the driver out to him while he attended to the injured child on the other side of the road. The officer testified the woman then came to him as he was carrying the child to his cruiser and told him she had consumed alcohol. He was surprised as this volunteered admission was not his usual experience at an accident scene. He had not yet turned his mind to a possible impaired driving investigation as his primary focus was on the injured child. However, when the applicant made her threat of self-harm and then made to leave the scene, the officer explained he knew he had the grounds for an impaired driving offence and did not know what she was intending to do, so he arrested her. He subjectively determined she was the driver of the motor vehicle as he chased her down the road away from the accident scene.
[29] Constable Heene conceded the applicant did not appear dishevelled and that he did not have an opportunity to observe the steadiness of her gait. He also allowed it was not unusual for him to deal with mental health issues when responding to an occurrence.
[30] The applicant challenges whether the officer, in fact, had identified her as the driver of the vehicle involved in the accident before he made the arrest. In cross examination, the arresting officer appeared to contradict his earlier testimony by agreeing he did not know the applicant was the driver when she first approached him and told him she had consumed alcohol:
Q. She made an admission about consumption of alcohol, but you’d agree with me you didn’t know her as the driver of the other vehicle at that time she approached you, right?
A. Correct.
[31] However, the officer later made the following clarification in cross examination:
Q. You had acknowledged to me that at that time she came up and admitted consumption of alcohol, you did not know her as the driver of the other vehicle … but you’d agree that you still did not know that she was the driver of the other vehicle at that time, right? Nothing had changed in that walk from where you were dealing with the child to catching up to her on Oxbow?
A. No, I believe that adds to my totality of it. I believe I was confident she was the driver. That’s why I went and followed her and arrested her.
[32] I acknowledge the officer seemed to contradict his earlier testimony through acknowledging counsel’s suggestion that he did not know the applicant to be the driver when she volunteered information to him about alcohol consumption. However, I am satisfied from my review of his evidence as a whole that this minute dissection of his testimony does not reveal a contradiction. Belief based upon perceived facts is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly: Censoni, supra at para. 44.
[33] The officer consistently explained that his subjective grounds crystallized at the moment the applicant made to leave the accident scene, based upon the pieces of information that became known to him over the first six minutes that he was at the scene. While he may not have turned his mind to the significance of her disclosure at the precise time she made the statement, including that she was the driver, it became important to him moments later when she made the suicide threat and walked away from the accident.
[34] Even if the officer’s testimony reveals a contradiction, I do not consider it either material or significant or that it affects either his credibility or the reliability of his evidence. He explained “the female” was pointed out to him as the driver by a bystander but that his primary focus was on the child at the time. He was unshaken in his testimony that it was “the female” who then approached him to tell him about consuming alcohol as he was carrying the child to his cruiser. He also clearly explained on cross-examination that the applicant’s admission of alcohol consumption gave him more reason to believe she was the driver, “cause why would someone come up to me at a collision and admit that?”
[35] I therefore accept that there is no question Officer Heene had an actual or honestly held belief that the applicant committed the offence of impaired driving at the time he placed her under arrest.
2. Would a reasonable person in the officer’s position, on a totality of the evidence, conclude there were reasonable and probable grounds for the arrest and breath demand?
[36] I am satisfied the totality of the circumstances demonstrate the officer’s subjective belief is supported by the objective facts.
[37] The grounds for arrest must often be assessed in the context of a dynamic and rapidly changing situation. Police must make a quick but informed decision of whether there are reasonable and probable grounds to believe the driver is impaired. In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions drawing on experience: Censoni, supra at paras. 36, 40, 41.
[38] In this context, I find the officer was not acting on tenuous or unreliable evidence grounded in suspicion and hypothesis. The following objective facts were available to the officer, and which allowed him to develop his reasonable grounds for the arrest and breath demand:
a. The collision;
b. The applicant was identified as the driver of the other involved vehicle;
c. The applicant then approached the officer while he was assessing the injured child and told him she had been consuming alcohol;
d. The officer detected an odour of alcohol; and
e. She then made a suicidal statement followed by a dramatic departure from the scene.
[39] From his years of experience, I accept the officer’s comment that it was surprising for a person to disclose alcohol consumption at a collision scene and that this impressed upon him that she was the driver, as who else would approach an officer at a serious accident scene and volunteer this information. The circumstances leading to her arrest unfolded quickly over those six minutes and her threat of self-harm and attempted flight from the scene did not afford him the luxury of reflection where he intended to focus on assessing the injured child. His logic in connecting the applicant’s unusual inculpatory disclosure followed moments later by a threat of self harm and her announced departure from a collision scene involving a seriously injured child to grounds to suspect impaired driving offence is reasonable in these circumstances.
[40] That the officer did not note other signs of impairment or that there could be another explanation for the odour of alcohol or the applicant’s mental distress is of no consequence to this analysis. Depending upon the totality of the factual circumstances, a detracting factor does not automatically deny the existence of reasonable grounds: Censoni, supra at para. 47.
3. Was the applicant informed promptly of the reasons on her arrest?
[41] This ground was not pursued in a material way on the application; however, as it was not formally withdrawn, I address it in these reasons.
[42] Section 10(a) of the Charter entitles an accused to be informed promptly of the reasons for their arrest. The officer’s uncontradicted testimony is that he stopped the applicant from leaving the collision scene and told her she was under arrest for “impaired operation”. The applicant herself volunteered to the officer that she had consumed alcohol. I find his communication was sufficiently clear and simple in the circumstances and enabled the applicant to understand the reason for her detention and the extent of her jeopardy at the time of her arrest.
[43] I find there was not a breach of the applicant’s section 10(a) right.
4. Was the applicant informed of her right to retain and instruct counsel without delay upon her arrest?
[44] This ground was also not argued on the application following the conclusion of testimony on the voir dire. Again, as it was not formally withdrawn, I will address the issue in these reasons.
[45] This ground concerns a nine-minute delay between the applicant’s arrest and her being advised of her section 10(b) Charter rights to retain and instruct counsel.
[46] The Charter requirement that an accused must be informed of her rights to counsel “without delay” means “immediately” and must be taken seriously. I nevertheless find there was not a breach of the applicant’s s. 10(b) rights. The right to counsel without delay is to ensure that individuals know of their rights to counsel and have access to it where they are in a situation of legal jeopardy. The right is meant to assist detainees to regain their liberty and to guard against the risk of involuntary self-incrimination: R. v. Suberu, 2009 SCC 33 at para. 40. At the same time, the Supreme Court of Canada has recognized that “immediately” is subject to concerns for issues such as public or officer safety: Suberu, supra at para. 42.
[47] The officer arrested the applicant on Oxbow Drive at 1:51 pm, between 50 and 60 metres away from the collision scene and his cruiser. He was the only first responder at the scene. There is no doubt the applicant made to leave the scene with what can be objectively assessed as a statement of self-harm. It is uncontroverted that he remained with the applicant in the place on the road where he arrested her, with her in handcuffs until another officer arrived at 2:00 pm. He then placed the applicant in his colleague’s cruiser and read her rights to counsel at 2:00 pm, nine minutes after her arrest. He testified that he did not read her rights or deliver the caution before then as he had been alone at the scene and was standing on the road with her and wanted to keep her under his physical control so she would be safe given her earlier statements. He did not think it prudent for him to remove his hands from her while he opened his book in order to read out her rights. He cited his personal safety as well as that of the applicant for delaying this necessary step.
[48] The delay is explained and, in the circumstances, is reasonable. The officer was alone at the scene of a serious motor vehicle collision where the suspected driver had just made an objectively ascertainable statement of self-harm and then made to walk away from the scene. He delivered the rights to counsel immediately after assistance arrived and when he could place the applicant in safety in the rear of the cruiser.
[49] I therefore find there was not a breach of the applicant’s s. 10(b) Charter rights on this arrest.
5. In the event of a breach of the applicant’s Charter rights, what is the appropriate remedy?
[50] If I am mistaken as to the validity of the arrest and subsequent breath sample, the applicant seeks remedies of either a stay or an exclusion of evidence pursuant to section 24(1) or (2) of the Charter in respect of the alleged Charter breaches. I will deal first with the relief sought under s. 24(2) and then whether the request for extraordinary relief of a stay is warranted.
Section 24(2)
[51] This assessment involves a consideration three factors and then a balancing of the results of those factors as set out in R. v Grant, 2009 SCC 32.
(i) The Seriousness of the Charter-Infringing State Conduct;
[52] The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the law: Grant, supra at para. 72.
[53] I make this assessment with respect to the applicant’s section 7, 8, 9 and 10 rights.
[54] There was no evidence to suggest the state conduct was deliberate or reckless as to citizens’ rights in the circumstances of the applicant’s arrest. The officer was dealing with a dynamic situation on his own on a rural county road with an unsecured accident scene and a seriously injured child that required his attention. The applicant offered him inculpatory information in the midst of those circumstances. He told her to wait given the emergent situation with the injured child who needed medical attention. However, the applicant then made a threat of self harm and took steps as though to act on that threat by walking down the road, away from the accident. This necessitated his immediate response and arrest.The officer’s response was reasonable in terms of apprehending and restraining the applicant for her own safety.
(ii) The Seriousness of the Breach on the Charter-Protected Interests
[55] This inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. One looks to the interests engaged by the infringed right and the degree to which the violation impacted on those interests: Grant, supra at paras. 76-77.
[56] The only inculpatory evidence that arose was through the applicant’s voluntary admission to the officer before her arrest. The officer’s uncontradicted testimony is that he would not have acted on that immediately but for the applicant then making a suicidal statement and gesture to leave the scene as though to act on that threat.
[57] I find that any violation of the applicant’s rights upon arrest are technical. I accept the Crown’s submission that the breath sample obtained following the applicant’s arrest was minimally intrusive, favouring admission: R. v Jennings, 2018 ONCA 260 at paras. 29-32.
(iii) Would admission of the evidence undermine public confidence in the administration of justice?
[58] This third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The long-term repute of the justice system is the focus of s. 24(2). Admission of 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: Grant, supra, at paras. 74-84.
[59] Exclusion of the breath sample evidence would deprive the Crown of crucial and reliable evidence by way of the breath sample. Our community has an interest in seeing accountability for the results of impaired driving. The facts of this case illustrate our community’s concern about the harm caused by this behaviour. It is emphasized where innocent parties, including children, were harmed.
[60] In balancing these three factors, the court finds in favour of the admission of this evidence. At best, there is a technical breach by a police officer in challenged and dynamic circumstances that resulted in a minimally intrusive breath sample where the applicant volunteered information and then acted in a manner to accelerate the investigation beyond a mere roadside breath demand.
[61] I would therefore dismiss the applicant’s submission for exclusion of the evidence. I now turn to the remedy of a stay of proceedings.
24(1) - Stay of Proceedings
[62] A stay of proceedings was not seriously argued on the evidence and the applicant did not respond to the respondent’s submissions in that regard. As a matter of procedure, I will address it now.
[63] The applicant has failed to satisfy the requirements for a stay of proceedings: R. v. Babos, 2014 SCC 16. This is a drastic remedy that prevents a determination of the trial on its merits. In the absence of any evidence to the contrary, I find there is no evidence that state misconduct compromised the fairness of the applicant’s trial or that state conduct risks undermining the integrity of the judicial process.
[64] For the foregoing reasons, the application is dismissed.
Justice K. Tranquilli
Released: August 16, 2022
R. v. Gaffney-Myles, 2022 ONSC 4613
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PATTI GAFFNEY-MYLES
REASONS FOR JUDGMENT
Justice K. Tranquilli
Released: August 16, 2022