Court File and Parties
COURT FILE NO.: 21-10768- AP DATE: 2023/11/17
BETWEEN: HIS MAJESTY THE KING – and – Kyle Fisher Appellant
COUNSEL: Carl Lem, for the Crown Sean May, for the Appellant
HEARD: October 4, 2023
ONTARIO SUPERIOR COURT OF JUSTICE
Reasons for Decision on Summary Conviction Appeal
CARTER J.
Introduction
[1] The Respondent was pulled over by the police for potential Highway Traffic Act, RSO 1990, c H.8 ("HTA") infractions. During the course of the investigation, the officer made a demand for an approved screening device sample. The Respondent refused to provide the sample and was arrested. Following the arrest, the officer kept the Respondent handcuffed and in his police cruiser for a further 74 minutes while he continued his investigation into the HTA offences. At trial, Justice Berg concluded this constituted a breach of the Respondent’s right not be arbitrarily detained under s. 9 of the Charter of Rights and Freedoms. Ultimately, the Trial Judge stayed the charged pursuant to s. 24(1) of the Charter.
[2] The Crown appeals that decision on the basis that Justice Berg erred in his application of the facts to the legal standards, both with respect to whether the Respondent was arbitrarily detained and whether a stay of proceedings was the appropriate remedy.
[3] The Crown does not take issue with any of the factual findings made by the Trial Judge. The key facts and findings are set out below.
[4] On July 30, 2021, Cst. Stephane Walter effected a traffic stop of the Respondent’s truck as he believed it to be in violation of numerous provisions of the HTA. When he approached the truck, Cst. Walter explained to the Respondent why he had been stopped and then made an ASD demand. An argument between the two ensued. After numerous efforts to get the Respondent to comply, the officer told the Respondent he had one last chance. When the Respondent did not make an attempt to provide a sample, he was arrested, handcuffed and placed in the back of the police vehicle. Shortly after, the handcuffs were moved from behind the Respondent’s back to the front.
[5] The officer then proceeded to examine the Respondent’s vehicle over the next 74 minutes. Cst. Walter filled out 10 Provincial Offences Act, RSO 1990, c P.33 (“POA”) summonses at the roadside and served them on the Respondent. He testified that he could have issued further tickets, but he recognized that he had to release the Respondent. He further testified that he had known from the time of arrest that he would be releasing the Respondent from the roadside.
[6] Several days after the incident, the officer attended at the impound lot where the Respondent’s truck was being kept and continued his POA investigation. He issued six more tickets at that time. It is somewhat unclear as to whether the Respondent was eventually served with those tickets.
[7] The Trial Judge held that there was a clear breach of the Respondent’s s. 9 Charter rights when the officer kept him detained in the police vehicle during the HTA investigation. Cst. Walter was wrong to believe he needed to detain the Respondent during this period so that he could personally hand out the POA tickets. The Respondent should have been released at the scene approximately 15 minutes after he was arrested. That period of time was sufficient to search him, provide the rights to counsel and cautions, prepare and serve the documentation with respect to the Criminal Code offence and then release him. It would have been up to the Respondent as to whether he wished to remain to be handed the tickets or to have them served on him at a later date.
[8] Relying on the Supreme Court of Canada decision in R. v. Aucoin, 2012 SCC 66, the Trial Judge concluded that the detention of the Respondent in the back of the police cruiser was not reasonably necessary and amounted to an arbitrary detention.
[9] With respect to remedy, Justice Berg noted that a stay of proceedings is appropriate only “in the clearest of cases”. Here, the circumstances of the detention did not compromise the fairness of the trial and Cst. Walter did not act in bad faith. Nevertheless, a number of factors weighed in favour of granting a stay. The breach was serious and there was a need to send a message that this type of detention will not be tolerated by the courts. While there is a societal interest in having drinking and driving-type cases determined on their merits, the facts in the present case (no allegation of impaired driving) do not render that interest particularly high. Finally, the lack of any alternative remedy suggested that the charge should be stayed.
First Ground of Appeal: Arbitrary Detention
[10] The Crown submits that the Trial Judge erred in finding that the Respondent had met his onus to establish a breach of s 9 of the Charter. It is argued that the police have the power to detain motorists to investigate and process HTA offences and that Cst. Walter, therefore, had the lawful authority to hold the Respondent for the time required to finalize the traffic tickets. Furthermore, the Trial Judge’s reliance on Aucoin was misplaced as the officer’s decision to hold the Respondent during the 74-minute HTA investigation did not fundamentally alter the nature of his ongoing detention. Decisions interpreting Aucoin have limited its scope and I am bound to follow one decided by a fellow Justice of the Superior Court of Ontario.
[11] As the decision in Aucoin is central to this ground of appeal, a review of the decision in some detail is important.
[12] Late one night, Mr. Aucoin was stopped by a police officer because the licence plate on the vehicle he was driving was registered to a different vehicle. He failed a roadside screening test and the officer decided to impound his vehicle and issue him a ticket pursuant to the Motor Vehicle Act, RSNS 1989, c 293. Fearing that Mr. Aucoin might disappear into the nearby crowd, the officer decided to secure him in the rear of his police cruiser while completing the paperwork. The officer first conducted a pat-down search, after asking for and receiving Mr. Aucoin’s permission. The officer felt something soft in Mr. Aucoin’s pocket and, when asked what it was, he said that it was ecstasy. Mr. Aucoin was arrested and searched further. The officer found cocaine and pills in his pocket. The trial judge held that the search did not violate s. 8 of the Charter and the seized evidence was admissible.
[13] The Supreme Court of Canada held that the pat-down search constituted a breach s. 8 of the Charter but admitted the evidence pursuant to s. 24(2).
[14] Moldaver J., for a majority of Justices, noted that a search will only be reasonable if it is authorized by law. The Crown sought to justify the pat-down search as incident to a lawful detention. As a result, the central issue in the case was whether placing Mr. Aucoin in the police vehicle was a lawful detention.
[15] The majority’s analysis begins with a recognition that the police had the authority to detain the accused in the rear of the police cruiser, having stopped him for a regulatory infraction. The real question was whether they were justified in exercising it as they did in the circumstances of the case. Both the majority and minority Justices found that they were not, and that the detention would have been unlawful. The reasoning of the majority is as follows:
Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat — knowing that this would also entail a pat-down search — detaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter: Clayton, at para. 20 (Aucoin at para. 39).
[16] It is important to recognize that there is a footnote at the end of the first sentence. It reads as follows:
Of itself, the increased restriction on the appellant’s liberty interests by placing him in the rear of the police cruiser required a standard of reasonable necessity. On these facts, the accompanying pat-down search, which affected his privacy interests, amounted to an aggravating factor [emphasis added].
[17] Despite the clear wording in the footnote of the Aucoin decision, the Crown asks me to rely on the decision of R. v. Chandarh, [2019] OJ No 3879, which it says stands for the proposition that the “reasonable necessity” test is only required when additional searches or other police authority is triggered.
[18] I do not accept that argument.
[19] I begin by noting that it is not clear that the Court in Chandarh has interpreted Aucoin in such a manner that I am, by reason of stare decisis, bound to follow it unless an exception is made out. In Chandarh, Justice Bielby was sitting as a summary conviction appeal court judge. While the proposition advanced by the Crown was certainly stated by the trial judge (R. v. Chandarh, [2018] O.J. No. 7499), at no point in the Reasons for Judgment does Justice Bielby specifically note that this proposition has been relied on in dismissing the appeal.
[20] In any event, even if Justice Bielby in Chandarh did accept that Aucoin is restricted to situations in which the reasonable necessity test is only required when additional searches or other police authority is triggered, I conclude that I am not bound to follow that aspect of the decision.
[21] Horizontal stare decisis applies to decisions of the same level of court. The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless certain criteria are met. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:
- The rationale of an earlier decision has been undermined by subsequent appellate decisions;
- The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
- The earlier decision was not fully considered, e.g. taken in exigent circumstances (R. v. Sullivan, 2022 SCC 19 at paras. 73 to 75).
[22] With respect to the second exception, a judge can depart from a decision where it was reached without considering a relevant statute or binding authority. The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision. It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Sullivan, at para. 77).
[23] I am of the view that this exception would apply. This is not a situation in which an entire authority (Aucoin) was not considered. Rather, it was a key aspect of that authority which runs directly contrary to the proposition at issue that the Court in Chandarh failed to address. The Supreme Court of Canada made clear that the reasonable necessity test is not restricted to cases involving searches. The increased restriction on a suspect’s liberty interests by placing them in a police cruiser, of itself, requires a standard of reasonable necessity. This passage is contained in the footnote that ends the very same sentence that was relied on in both the trial and appeal decisions in Chandarh for a finding to the contrary. As noted by Justice Dawson in R. v. Wilczewski, 2023 ONSC 3820, this is a complete answer to the contention that something more than an increased level of detention is necessary to trigger the reasonable necessity requirement.
[24] In essence, binding authority from the Supreme Court of Canada was ignored in the Chandarh decisions. I am bound to follow the Supreme Court of Canada’s decision in Aucoin. As a result, I do not accept the Crown argument that the Trial Judge erred in finding that that the Respondent was arbitrarily detained despite the fact that no additional searches or other police authority were triggered.
[25] Nor is Aucoin distinguishable, as alleged by the Crown, on the basis that in that case there was no criminal investigation. Mr. Aucoin was detained for an infraction under Nova Scotia’s equivalent of the HTA and the decision to secure him in the police cruiser “fundamentally altered the nature of his ongoing detention.” In the present case, the Respondent was properly placed in the police cruiser during a criminal investigation and remained there once that investigation was completed but the HTA investigation continued. As a result, the nature of his ongoing detention was not fundamentally altered says the Crown.
[26] To interpret Aucoin in such a manner would run counter to the intent of the Supreme Court of Canada intent. The Court was concerned about the adverse impacts the decision to secure a suspect in the rear of a cruiser would have on liberty and privacy interests. Furthermore, Moldaver J. noted that “[i]n the context of a straightforward motor vehicle infraction, I recognize that it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser” (para. 43).
[27] The Trial Judge concluded that the Respondent was releasable with respect to the criminal investigation about 15 minutes after his arrest. The Crown takes no issue with that finding. At that point, the Respondent’s status changed. There was a shift from a criminal investigation to an HTA investigation. As a result, there was a corresponding shift in the nature and extent of the Respondent’s detention. The decision to have him remain handcuffed in the cruiser resulted in an increased restriction on his liberty interests in the sense that he should have been removed from the handcuffs and cruiser but was not. His continued detention could only be justified if it was reasonably necessary in the totality of the circumstances. The Crown does not suggest such a justification existed.
[28] There is no dispute with the Crown’s position that the police have the power to detain an individual while investigating traffic offences (John v. Office of the Independent Police Review Director, 2017 ONSC 42). However, when the individual is placed into a police cruiser, it must be reasonably necessary otherwise it will amount to an unlawful detention. That is what happened here. The Trial Judge was correct to find that the Respondent’s s. 9 rights had been breached.
Second Ground of Appeal: Stay of Proceedings
[29] In the alternative, the Crown submits that the Trial Judge erred in entering a stay of proceedings. He misdirected himself by positing that a refusal to comply with a demand for a breath sample was a crime of a lower order than impaired driving and by failing to consider the availability of alternative remedies. Furthermore, the decision to stay proceedings against the Respondent was so clearly wrong as to amount to an injustice.
[30] I cannot say that the decision to stay proceedings against the Respondent was so clearly wrong as to amount to an injustice. The Trial Judge found that the breach was serious and rightfully so. This was not a brief detention. The Respondent was handcuffed and in the police cruiser for over an hour. As noted by the Supreme Court, it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser. This was nowhere close to such a case.
[31] That said, the Trial Judge’s analysis of potential alternative remedies was limited. On appeal, the Crown has relied on a number of cases in support of the proposition that granting a stay as a remedy for post offence breaches of s. 9 will be rare and that reducing the sentence to a mandatory minimum would be a more appropriate and just remedy than a stay (R. v. Rossi, 2017 ONCJ 443; R. v. Waisanen, 2015 ONSC 5823; R. v. Iseler, (2004), 190 C.C.C. (3d) 11 (OCA); R. v. Mangat, [2006] O.J. No. 2418 (C.A.); R. v. Price, 2010 ONSC 1898; R. v. Cheema, 2018 ONSC 229).
[32] In fairness to the Trial Judge, it should be noted that the Crown did not make this argument about a lesser remedy at trial. Nor did it produce the cases it is relying on at this appeal. In fact, during submissions, Justice Berg asked the following of Crown counsel:
Is there an alternative remedy? A remedy here, I cannot think of one, and I really turned my mind to it.
[33] No response from Crown counsel was forthcoming.
[34] Although I am somewhat reluctant to allow an appeal based on an argument that the Crown did not fully advance at trial, in light of the authorities that have been placed before me I believe it is in the interest of justice for the issue of alternative remedies to be addressed. Given that the issue was not argued at first instance and that the Trial Judge is in the best position to consider the appropriate remedy for the conduct which he found amounted to a breach of the Charter, I conclude that the matter should be remitted to Justice Berg to decide that narrow issue.
[35] The appeal is allowed. The matter is to return before Justice Berg solely on the issue of remedy for the breach of the Charter.
Carter J.
Released: November 17, 2023
COURT FILE NO.: 21-10768- AP DATE: 2023/11/17
ONTARIO SUPERIOR COURT OF JUSTICE
His Majesty The King -and- Kyle Fisher Appellant
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
Carter J.
Released: November 17, 2023