COURT FILE NO.: 23-G11405755A DATE: 2024/12/17 SUPERIOR COURT OF JUSTICE
RE: HIS MAJESTY THE KING v. RAMI HACHEM, Defendant
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Vanessa Purdie, for the Crown (Respondent) James Coulter for the Defendant (Applicant)
HEARD: November 12, 2024
Reasons for Decision on Charter Application
[1] The Defendant is facing two charges for allegedly operating a vehicle while impaired by drugs. He had originally also faced drug and weapons charges, but the federally prosecuted drug charges were severed and at the opening of the trial, the provincial Crown withdrew all but two of the remaining Criminal Code offences. The Defendant was therefore arraigned only on counts 2 & 3.
[2] Count 2 is an allegation that the accused operated a motor vehicle while impaired by drugs contrary to s. 320.14 (1) (a) of the Code. Count 3 is an allegation that the accused had a prohibited level of drugs in his blood within two hours of operating a vehicle contrary to s. 320.14 (1) (c) of the Code.
[3] The Defendant brings a Charter application to exclude the Crown’s evidence on both charges. The evidence on count 2 consists of the observations of the arresting officer including his administration of a Standard Field Sobriety Test (SFST). The evidence on count 3 was obtained after the Defendant was arrested and tested by a Drug Recognition Expert at the Police Station.
[4] In the course of the hearing, I heard evidence from two police officers, Constable Ryan Ireland and Constable Christine Schultz. I will discuss the role of each of those officers momentarily. The issue is whether the actions of the officers on the night in question constituted a breach of the Charter rights of the accused and if so whether the appropriate remedy is to exclude the evidence and to stay the charges.
The Facts
[5] Most of the facts are not in dispute. On May 1st, 2022, Constable Ireland was in a marked police cruiser at the corner of O’Connor and Isabella streets in the City of Ottawa. His attention was attracted to a grey Hyundai operated by the Defendant. He first heard a loud screeching sound, and he then noticed the Hyundai as it passed his cruiser. The vehicle was notable because it appeared to have damage to the front end was emitting what looked like grey smoke.
[6] Constable Ireland activated his rooftop lights and followed the vehicle which turned into a covered parking lot at 100 Isabella St. Constable Ireland parked behind the vehicle and exited his cruiser at 21:03 hr. (9:03 p.m.).
[7] There is no dispute that Constable Ireland had the authority to stop the vehicle pursuant to the Highway Traffic Act, R.S.O., 1990, c. H.8, to ask for identification and to determine what had occurred. It is also clear that when Constable Ireland parked behind the vehicle with his lights flashing and approached the driver, any objective observer would have concluded that the accused had been stopped by the police, was temporarily detained and was not free to leave. The detention therefore began at 21:03hr.
[8] When the officer stopped behind the vehicle, he noted that the Hyundai stopped, rolled forward and stopped again. According to the officer, when he approached the vehicle and asked what happened, the accused stated he “hit a car”. The officer then asked the driver for his licence, registration and insurance particulars. As detailed in his testimony, the officer noticed that the accused seemed to be complying by searching for his documents in a satchel he had in his possession. The accused then paused and was asked a second time at which point he produced the documents.
[9] The officer observed that the accused was mumbling and seemed confused. His eyes seemed droopy and bloodshot. The officer detected no odour of alcohol. At some point, based upon the accident, the behaviour of the accused and the officer’s observations, he formed the suspicion that the driver was likely impaired and probably under the influence of drugs.
[10] Before he could take any further action, Constable Ireland was interrupted by the approach of an irate man who turned out to be the owner of the vehicle hit by the accused. This man (Mr. Dumochel) attempted to accost the accused. Constable Ireland had to physically intervene and to instruct the individual to back away. Mr. Dumochel continued in his attempt to accost the defendant and to occupy the attention of Constable Ireland until two other officers arrived on the scene. There continued to be disagreement between Mr. Dumochel and the other officers and a continuing commotion. Mr. Dumochel was quite unruly and engaged in an altercation with the other officers. Constable Shultz testified that when she arrived, she threatened to taser Mr. Dumochel. This distraction caused a delay in further investigating the accused.
[11] At approximately 21:12 according to the officer’s notes, he decided to administer the Standard Field Sobriety Tests (SFST) and read Mr. Hachem the demand which he carried in his notebook. This is the demand contemplated by s. 320.27 (1) (a) of the Criminal Code. The administration of the tests is governed by the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations. It is not contested that the officer had reasonable grounds to suspect the accused had alcohol or drugs in his body and the authority to administer a roadside sobriety test.
[12] The issue is whether there was unreasonable delay. This is an issue in such cases because the provisions of the Criminal Code permitting an officer to detain a driver for the purpose of determining whether a driver is impaired and then to demand that the driver participate in testing would ordinarily offend the right not to be detained arbitrarily and the right against self incrimination. The Courts have held that the process or processes set out in what is now s. 320.7 of the Code is a procedure justified under the Charter because of the significant societal costs associated with impaired driving. [^1] To be justified, however, the intrusion upon Charter protected rights must be minimal. The procedures authorized by the Criminal Code must be strictly followed and any detention prior to making a demand, administering testing or providing the right to counsel must be kept to a minimum.
[13] According to the officer’s testimony and his notes, the SFST demand was read at 21:12hr (9:12 p.m.) and the Defendant then performed the standardized tests. The Defendant did not perform well on the sobriety test and Constable Ireland then advised him he was being arrested on suspicion of operating a vehicle while impaired. The Defendant was advised he would be taken to the police station for drug testing.
[14] According to his notes and his testimony, Constable Ireland placed Mr. Hachem under arrest at 21:28 (9:28 p.m.), searched him incident to arrest and lodged him in the police cruiser. As a consequence of finding a knife on his person, querying the computer and learning that the Defendant had a weapons prohibition and on hearing information from Constable Shultz, Constable Ireland also informed Mr. Hachem he was being arrested on other charges. Constable Ireland read the accused his right to counsel at 21:37, cautioned him at 21:38 and read a further demand concerning a drug recognition expert at 21:39.
[15] Mr. Hachem was then transported to the police station where he was able to speak with a lawyer. Subsequently he was transferred to the custody of another officer for administration of the drug tests. It is not disputed that the drug tests indicated a prohibited level of drugs in the Defendant’s blood. Unless that evidence is excluded, it will support a conviction.
[16] In relation to the warnings and testing administered by Constable Ireland at the scene, there is a minor discrepancy between the officer’s memory of events, the times recorded in his notes and the times shown on a 7 minute 10 second fragment of video surveillance. The latter was recovered from the parking lot surveillance system and was shown to the officer for the first time in cross-examination. Although the police had been informed that the video from the evening in question had been erased and overwritten, and there is no footage of the subsequent sobriety test and arrest, this fragment of video does show the initial interaction. The officer agrees that the times shown on the video must be correct. His time of arrival corresponds with his notes (21:03hr) and the video ends while he is reading or preparing to read from his notebook prior to administering the SFST. [^2]
[17] The video records the arrival of Constable Ireland on the scene at 21:03:22 and terminates at 21:10:30. It does not record the field sobriety test. The times recorded on the video suggest that the time between the arrival of Constable Ireland and the departure of Mr. Dumochel was somewhat shorter than the Constable’s recollection. The Constable’s recollection of precisely where Mr. Hachem was located when he decided to administer the tests also appears to be in error. As can be seen on the video, Mr. Hachem and Constable Ireland had a two minute face to face conversation after the Constable returned from dealing with Mr. Dumochel and before they moved to the back of the vehicle to conduct the SFST.
[18] On the video, Constable Ireland obtained I.D. from the Defendant at 21:04:26, about 1.5 minutes after arriving on the scene. A few seconds later, at 21:05:02, Mr. Dumochel arrived and attempted to accost the driver. Mr. Dumochel is seen arguing with Constable Ireland and subsequently with other officers. Although Constable Ireland returned to speak with the Defendant as early as 21:06:33, his attention was then immediately distracted by the scuffle between Mr. Dumochel and the other officers. At one point, Constable Ireland walked back to his cruiser to check on the other officers and ultimately the video appears to show Mr. Dumochel in handcuffs being led away. This commotion continued until 21:07:18 at which time Constable Ireland can be seen questioning the Defendant who has exited the vehicle and is standing facing Constable Ireland inside his driver’s door.
[19] At 21:08:27 another bystander walked by and is approached by another officer who had arrived on the scene. A group of officers, including Constable Shultz arrived at 21:10:27. It is at this point that Constable Ireland and the Defendant move to the back of the vehicle. Constable Ireland can be seen producing his notebook and gesturing to the Defendant. This is consistent with the Constable’s evidence that he read the SFST demand from his notebook and began to administer the test at 21:12hr. The video cuts off at 21:10:30.
[20] From the video and the cross-examination, it is clear that the initial distraction involving Mr. Dumochel started just after Constable Ireland obtained the driver’s documents at 21:04.46 and continued until 21:07:18. There was other activity including the arrival of a bystander and the arrival of other officers. This distraction from dealing with the Defendant accounts for approximately five minutes of the time before the test was administered. Constable Ireland then spoke to the Defendant for approximately two minutes before asking him to move to the back of the vehicle and preparing to read him the demand for the SFST. Defence counsel argues that this delay during which the accused did not know that the traffic stop had turned to a potential criminal investigation constitutes a breach of his Charter rights. The Crown argues that it is reasonable delay under all of the circumstances and should be regarded as de minimus.
[21] There was a much more significant event which occurred simultaneous with the events detailed above. While Constable Ireland was administering the SFST to Mr. Hachem, Constable Shultz arrived at the defendant’s vehicle and without speaking to the accused or consulting with Constable Ireland, she conducted a search of the car. It was her evidence that she began the search looking for Mr. Hachem’s drivers’ licence, insurance and registration. Evidently, she was not aware that Constable Ireland had already obtained those documents. Constable Shultz searched the glove box, visor and central console. During that search she discovered a set of brass knuckles and what appeared to be drugs in the console.
[22] Constable Shultz also assumed, without verifying it, that the accused had been arrested and the vehicle would have to be towed. Assuming these facts, she then conducted a search of the trunk of the vehicle and discovered a substantial quantity of drugs in a duffel bag. In cross-examination, she conceded that she is now aware that at the time she did not have lawful authority to search the vehicle and acted prematurely.
[23] As a consequence of the vehicle search, the accused was also charged with a series of weapons offences and drug offences. As noted above, the federal charges were severed from the original indictment and have or will be dealt with separately. They are not before me. As also discussed above, all other remaining charges on the indictment are being withdrawn. Consequently, for purposes of this trial, the only charges faced by the accused are counts 2 & 3. Those are the impaired charges pursuant to s. 320.14 (1) (a) and 320.14 (1) (c). All of the weapons charges and the breach of a weapons prohibition have been withdrawn.
Argument and Analysis
[24] Section 8 of the Canadian Charter of Rights and Freedoms guarantees Canadians the right to be free of unreasonable search and seizure. Section 9 guarantees the right not to be arbitrarily detained. Section 10 (a) of the Charter guarantees the right upon arrest or detention to “be informed promptly of the reasons therefor” and s.10 (b) guarantees the right to retain and instruct counsel without delay. Section 11 (c) protects against self incrimination. These rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
[25] The courts have held that the requirement in the Code that the officer make the demand to “immediately” perform the physical coordination tests or “immediately” provide samples of breath are “inextricably linked to its constitutional integrity”. [^3] The point here is that a short detention for the purpose of administering a roadside test or further testing at the police station is only justified if the detention is for no longer than is reasonably necessary. A delay of 15 minutes was held to be reasonable by the Supreme Court of Canada when it was necessary to ensure the accuracy of the breathalyzer but a very brief delay because a police officer had placed a roadside testing device in a location where it was not immediately accessible was held not to be. [^4]
[26] The delay must be measured from the time the officer formed the suspicion to the time the demand was made. In this case, Constable Ireland arrived on the scene at 21:03hr. He then approached the vehicle and questioned the driver. While he may have formed the suspicion that the driver was impaired at the point he asked for his identification, he was immediately interrupted. As discussed above, the commotion surrounding Mr. Dumochel and subsequent events occupied Constable Ireland for up to five minutes and he resumed questioning the Defendant for two minutes before he issued the demand for roadside testing.
[27] As discussed above, the authority granted to the police to investigate impaired driving through roadside demands and intrusive testing has been held to be constitutional. Though justifiable, however, the intrusion on Charter rights must impair those rights as minimally as possible. [^5] It is for this reason that the “immediacy” requirement in the relevant sections of the Code must be applied strictly. An unreasonable delay in making the demand, administering the tests or advising an accused that he is being arrested on suspicion of impaired operation of a vehicle will render the detention unlawful.
[28] In this case, the slight delay in administering the SRST is explained by the need to deal with Mr. Dumochel and by the resulting distraction. The police have a duty to ensure public safety and, in this case, to ensure that Mr. Dumochel did not confront the Defendant. Based on all of the evidence including the video surveillance, I find that there was at most a two minute delay between Constable Ireland returning to the vehicle, resuming his interrogation of the Defendant and making the demand for the SRST. I do not consider this to be a breach of the Defendant’s Charter rights. If I had concluded that the delay constituted a Charter breach, it would not follow automatically that the evidence of impairment should be suppressed.
[29] If the court concludes that the rights or freedoms guaranteed by the Charter have been infringed or denied, the court may grant a remedy. In particular, s. 24 (2) of the Charter directs the court to exclude evidence that was gathered in a manner that infringed the guaranteed rights or freedoms if the court concludes that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. In other words, exclusion is not the only remedy, and it is not automatic.
[30] Exclusion of the evidence of the failed SFST test and the subsequent blood test is an extreme remedy for a minor delay. The result of the investigation would have been the same had there been no delay insofar as the impaired charges are concerned.
[31] The search of the vehicle conducted by Constable Shultz is a more serious matter but there is no evidence gathered during the vehicle search that is relevant to the two counts of impaired operation of a motor vehicle. Arguably, the remedy for an unlawful motor vehicle search has already been obtained because the Crown has withdrawn the charges.
[32] The Defendant, however, argues that the unlawful search of the vehicle is part of the overall context and illustrative of a cavalier disregard for Charter rights. What might otherwise have been a minor breach by reason of the delay in administering the roadside test is therefore magnified and would justify a finding that the SRST, the subsequent arrest and the testing at the police station are all unconstitutional.
[33] I do not agree. Firstly, I have found that the delay was not unreasonable in all of the circumstances. In that case the roadside test and the arrest on suspicion of being impaired was constitutional and was not a Charter breach. Secondly, if there was a momentary unreasonable intrusion on Charter rights due to delay, in the circumstances described above, the vehicle search was not related to those charges. I agree with the Crown that there are no fruits of the vehicle search relevant to the two counts the accused is now facing. The relevant evidence for those charges consists of the observations of Constable Ireland, the SFST test and the confirmatory drug testing at the police station.
Conclusion and Decision
[34] In conclusion the administration of the roadside testing and subsequent demand and testing at the police station were justified under the applicable Criminal Code provisions and did not constitute a Charter breach.
[35] The application to exclude the evidence is denied.
C. MacLeod Date: December 17, 2024
Footnotes
[^1]: See R. v. Degiorgio, 2011 ONCA 527 Note that pursuant to amendments set out in S.C. 2018, c. 21, the former provisions of the Code dealing with blood alcohol levels were augmented to include blood drug levels and the provisions permitting roadside testing, breathalyzing and blood testing were renumbered and move to a new “Part VIII.1”
[^2]: There is no sound track to the video as it was a silent recording.
[^3]: See R. v. Quanash, 2012 ONCA 123 & R. v. Sillars, 2022 ONCA 510. The previous enactment read “forthwith” and it now reads “immediately” which has the same meaning.
[^4]: See R. v. Bernshaw, [1995] 1 SCR 254 and the cases cited in R. v. Qanash, supra.
[^5]: See R. v. Oakes, [1986] 1 SCR 103 @ para. 70