COURT FILE NO.: CR-22-70000016-00AP
DATE: 20230515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JASON MARTIN
A. Del Rizzo, for the Crown
L. Villani, for Mr. Martin
HEARD: 5 April 2023
S.A.Q. AKHTAR J.
On appeal from the acquittal entered on 31 March 2022 by Justice J.W. Bovard of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The respondent was acquitted of a number of charges, including impaired driving contrary to s. 320.14(1)(a) of the Criminal Code, R.S.C., 1985 c. C-46 driving whilst his alcohol concentration equalled or exceeded 80 mg in 100 ml of blood contrary to s. 320.14(1)(b) of the Code. He was also charged with a number of related drug and breach of probation offences.
[2] The trial judge found that the respondent’s ss. 8, 10(a), and 10(b) Charter rights had been violated and excluded “all of the evidence” against the respondent pursuant to s. 24(2) of the Charter.
[3] The appellant does not contest the rulings, but argues that the decision to exclude all the evidence was an error. The appellant submits that observations made of the respondent prior to any police interaction should have been admitted by the trial judge.
[4] The respondent submits that the impugned evidence was properly excluded. In the alternative, he argues that even if the evidence was admitted, it would have been insufficient to prove guilt on the impaired driving charge. Accordingly, the respondent asks that the appeal be dismissed.
Background Facts
[5] On 5 April 2020, Dennis Kehoe, a civilian witness, was walking his dog at around 9:00 a.m. on Mount Pleasant Boulevard in Toronto. His attention was directed towards a loud sound which came from a car driving with its front wheel “blown out”.
[6] The car came to a stop. Mr. Kehoe approached and saw the respondent and a woman standing outside the car hugging. Mr. Kehoe testified that he saw the respondent urinate on the woman.
[7] He had a brief conversation with the female before calling the police and walking away. However, Mr. Kehoe continued to observe from a distance and saw both get back into the car with the respondent in the driving seat. The car drove a short distance but pulled over again.
[8] Mr. Kehoe described both occupants to be drunk and “not just a little bit (inaudible) very out of it”. Later, he clarified that the pair were “very drunk”. At trial, Mr. Kehoe also testified the female had told him that “we’re really drunk” in slurred speech and that he saw her staggering.
[9] When police arrived, they approached the respondent. One of the officers, PC Artinian, described him as being off-balance and “began to turn almost like a pirouette coming out of the car and he rolled against the side door and came to a stop at the back quarter panel”.
[10] PC Artinian could also smell an odour of alcohol on the respondent’s breath and saw him to be unsteady on his feet. The respondent was arrested by one of PC Artinian’s colleagues, PC Pham.
[11] After being taken to the police station, the respondent continued to look unsteady and could be seen dragging his feet throughout the booking process. During the search at the police station the applicant remained cooperative. He almost fell over but was prevented from doing so by an officer who assisted him.
[12] There was also evidence that the respondent was continually falling asleep at the station. Other officers testified to the respondent’s appearance and confirmed the smell of alcohol, slurred speech, and bloodshot eyes.
[13] The respondent’s breath samples registered readings of 143 mg and 127 milligrams of alcohol in 100 millilitres of blood.
[14] When they searched the respondent on scene, incident to his arrest, police found several types of drugs on his person and in his car, and he was arrested for being in possession of controlled substances. When he arrived at the police station, the respondent was strip searched because of the discovery of the drugs.
[15] At trial, the respondent brought a Charter application alleging his ss. 8, 9, 10(a), and 10(b) rights had been breached and sought a stay of proceedings or, alternatively, exclusion of all the evidence against him.
[16] Ultimately, the judge held that the police had failed to properly advise the respondent of the charges he had been arrested for and that the strip search at the station was unjustified. As a result, the judge found the police had breached the respondent’s ss. 8 and 10(b) rights, although he dismissed the s. 9 application.
[17] He found that the cumulative impact of the breaches necessitated the exclusion of “all of the evidence” against the respondent and entered an acquittal.
Position of the Parties
[18] The appellant does not take issue with the findings of the trial judge in respect of the Charter violations or seek to appeal those rulings.
[19] Instead, the appellant appeals only the acquittal on the impaired driving charge, arguing that the trial judge committed errors in his analysis of what constituted evidence “obtained in a manner”. In the alternative, the appellant submits that the judge misapplied s. 24(2) of the Charter when excluding the evidence of the observations made before the respondent’s arrest. The appellant claims that if the observations had been properly admitted, the respondent would have been found guilty.
[20] The respondent on the other hand, submits that the evidence was properly excluded. In the alternative, he argues that even if the evidence was admissible, the appeal should be dismissed on the basis that there was insufficient evidence to prove that he had operated his vehicle whilst impaired.
WERE THE OBSERVATIONS OBTAINED IN A MANNER THAT VIOLATED THE RESPONDENT’S CHARTER RIGHTS?
Mr. Kehoe’s Observations
[21] Mr. Kehoe’s Observations
[22] I agree with the appellant’s interpretation of the law that the offence of impaired driving under section 320.14(1)(a) of the Criminal Code only requires the Crown to show impairment “to any degree” by alcohol. In other words, an accused need not be in a state of extreme intoxication in order to be found guilty: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 CCC (3d) 380 (Ont. C.A.), aff’d 1994 CanLII 94 (SCC), [1994] 2 SCR 478; R. v. Bush, 2010 ONCA 554, at paras 47-48.
[23] Here, both the police and Mr. Kehoe made visual observations suggesting impairment.
[24] Mr. Kehoe saw the damage to the car and the behaviour of both occupants when they exited the vehicle. The smell of alcohol, the slurred speech, and the fact that the respondent urinated over his female friend were all sufficient indicia of impairment. Moreover, the Crown could also rely on evidence of the damage to the vehicle as additional signs that the driver of the car was impaired: R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108, at para. 19; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641 at para. 54.
[25] Section 24(2) of the Charter states that where “a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.
[26] In this case, the trial judge determined that all of the evidence against the respondent was “obtained in a manner” and subject to a s. 24(2) analysis.
[27] The judge relied upon R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561 where the Court of Appeal confirmed that evidence obtained prior to a Charter violation could be characterised as being “obtained in a manner”.
[28] Laskin J.A. set out the following guidelines to determine whether evidence had been “obtained in a manner”:
(1) The approach should be generous, consistent with the purpose of s. 24(2)
(2) The court should consider the entire "chain of events" between the accused and the police
(3) The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
(4) The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
(5) But the connection cannot be either too tenuous or too remote.
[29] In this case, the trial judge found the respondent’s s. 10(a) and 10(b) rights were violated because PC Pham could not remember whether he had charged the respondent for driving whilst impaired or being impaired whilst in care and control of his car.
[30] Notwithstanding the observations took place before the respondent’s detention and arrest, the trial judge found that pursuant to Pino, the evidence fell within the confines of s. 24(2) of the Charter. After considering the principles set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the judge decided to “grant the defence’s application and exclude all the evidence against Mr. Martin.” After doing so, he concluded “[t]here being no other evidence against him, I dismiss all the charges.”
[31] The appellant suggests the trial judge erred by finding the observations made by Mr. Kehoe and the police before his arrest and detention were “obtained in a manner”.
[32] The respondent, on the other hand, submits that the trial judge did not include Mr. Kehoe’s evidence as part of the Charter analysis and that his reasons should be read as meaning that without the evidence of what the police saw there was no evidence against him. I disagree.
[33] It is clear from the judge’s reasons at para. 289 that he excluded “all of the evidence” against the respondent. His conclusion that since there was “no other evidence” remaining he had to dismiss the charges leads to two alternative conclusions: (1) he included Mr. Kehoe’s observations in the s. 24(2) analysis or (2) he failed to recognise that Mr. Kehoe’s observations constituted evidence of impaired driving.
[34] Either conclusion would be an error.
[35] Mr. Kehoe was not a state actor and his observations or conduct could not be the subject of the defence’s Charter application or be excluded under s. 24(2).
[36] If the judge did not use Mr. Kehoe’s evidence in his Charter analysis, his evidence was clearly capable of demonstrating guilt: the judge was wrong in ruling that there “was no other evidence against” the respondent.
[37] This error on its own leads to a new trial being ordered.
The Police Observations
[38] Turning to the police observations, I also find that the judge erred by concluding that this was evidence obtained in manner that violated the respondent’s Charter rights.
[39] As noted, to find evidence to be “obtained in a manner” requires an approach consistent with the purposes of s. 24(2). The observations were not part of the same transaction or course of conduct. The police arrived in response to the 911 call and made their observations as the respondent exited the vehicle and then advised another officer, PC Pham, to arrest him for care and control of the vehicle.
[40] The judge found that the Pino test had been satisfied. At paras. 263-5 of his judgment, he made the following comments:
Based on the jurisprudence cited above and the facts of this case I do not agree with the Crown’s submission. I find that the breaches of Mr. Martin’s Charter rights “are all "temporally" and "contextually" connected to the evidence sought to be excluded. They all occurred in the course of the same "transaction": Mr. Martin’s arrest and immediate processing at the police station.
There does not have to be a causal connection. The temporal connection between Mr. Martin’s arrest, processing him, the breaches, and the gathering of evidence is not “too remote”. I find that it was one continuous stream of events. All these events shared the same temporal and contextual reality.
As indicated above, “the court's approach to the "obtained in a manner" requirement should be both "purposive" and "generous".
[41] The judge made no comment about how the observations - seeing the respondent pirouette against the car when they first arrived, his bloodshot eyes, or smell of alcohol - were in any way “contextually” connected to the breach other than they occurred before the respondent’s arrest.
[42] The observations were separate and distinct from PC Pham’s breach of s. 10(b). They were even further removed from the strip search that occurred at the station over an hour later.
[43] The observations were connected in time but were clearly not causally connected to the breach. Nor was the breach part of the same transaction or course of conduct. The observations clearly did not flow from the breach. The mere connection in time is not sufficient to make the events temporally connected: R. v. Daye, 2022 ONCA 675, at para. 8.
[44] In R. v. Do, 2019 ONCA 482, the Court of Appeal for Ontario dismissed an appeal alleging the trial judge erred by failing to recognise a Pino type connection between items seized after the execution of a search warrant and a s. 10(b) breach committed on arrest. At para. 11, the court held that Pino was distinguishable because “the earlier seizure of the drugs and other items under a valid search warrant properly executed was a transaction largely completed at the time of the appellant's arrest, it was causally, temporally and contextually distinct and separate from the arrest. Any possible breach of s. 10(b) in the time following the appellant's arrest does not attach to that evidence.”
[45] The same applies here. The observations were complete before the respondent’s arrest and therefore distinct from the subsequent s. 10(a) and 10(b) violations found by the judge.
[46] As pointed out in Pino, the evidence had to have some type of nexus to the breach to warrant the purpose of a s. 24(2) analysis. The judge found the s. 10 breaches to be serious because they impacted on the respondent’s knowledge of the extent of his jeopardy to seek advice from his counsel. As in Daye, the evidence - the observations - could not have had any influence or impact on that appreciation: Daye, at para. 8.
[47] As a result, I find the observations made by the police were not “obtained in a manner” and should not have been excluded under s. 24(2) of the Charter.
[48] For these reasons, I do not need to determine whether the evidence should be admitted after a s. 24(2) analysis.
[49] The appeal is allowed, a new trial is ordered, and the respondent is ordered to attend Courtroom 202 at the Ontario Court of Justice Courthouse at 10 Armoury Street in Toronto on 31 May 2023 at 10:00 a.m.
S.A.Q. Akhtar J.
Released: 15 May 2023
COURT FILE NO.: CR-22-70000016-00AP
DATE: 20230515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JASON MARTIN
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.