Ontario Superior Court of Justice

Court File No.: CR-24-10000035-00AP
Date: 2025-03-03

BETWEEN:
His Majesty the King, Respondent
and
Raquel Rodrigues, Appellant

Appearances:
Patrick Quilty, for the Crown
Nate Jackson, for Raquel Rodrigues

Heard at Toronto: February 18, 2025

Reasons on Appeal
J.K. Penman

A. Overview

[1] Raquel Rodrigues was charged with “over 80” contrary to s. 320.14(1)(b) of the Criminal Code. Her trial proceeded before Libman J., with the defence alleging several violations of Ms. Rodrigues’ rights under the Canadian Charter of Rights and Freedoms (the “Charter”). The Charter application was dismissed, and Ms. Rodrigues was convicted and sentenced to the minimum fine of $1,500 and a 12-month driving prohibition.

[2] Counsel for Ms. Rodrigues now appeals both conviction and sentence, and argues that:

• The trial judge erred in finding that the police did not violate Ms. Rodrigues’ s. 9 Charter rights when she was forced to sit handcuffed in a police car for an additional 30 minutes while officers waited for the Booking Sergeant and a female officer to conduct the frisk search;
• The trial judge erred in holding that the breath samples would not have been excluded pursuant to s. 24(2) even if a s. 9 Charter violation had been found; and
• The trial judge erred in failing to apply the Supreme Court of Canada’s dicta in R. v. Basque, 2023 SCC 18 that pre-trial restrictions on one’s ability to drive should be credited at sentencing via a reduced driving prohibition.

[3] Counsel at trial also brought a s. 8 Charter challenge relating to the two-and-a-half-hour delay in obtaining the first breath sample and over three-hour delay in obtaining the second. Just prior to the trial, the decision of R. v. Ridley, 2023 ONSC 5967 was released. In that case, the court found that s. 320.28(1) of the Criminal Code does not impose a requirement that the police take breath samples as soon as practicable, nor does it establish that a failure to do so results in a Charter violation.

[4] Counsel did not abandon the s. 8 argument and acknowledged that the trial judge was bound by horizontal stare decisis. Ridley is now under appeal. Following the decision in R. v. Borko, 2024 ONSC 1988, counsel agreed that the s. 8 argument will be waived at this time, reserving the Appellant’s right to raise it on further appeal if necessary.

[5] Having reviewed the trial record and the reasons of the trial judge, I see no basis to interfere with the trial judge's decision on the s. 9 issue or the finding that no credit should be awarded for the pre-trial driving prohibition.

[6] The appeal is dismissed for the reasons outlined below.

B. Did the Trial Judge Err in Not Finding a Violation of Ms. Rodrigues’ s. 9 Charter Rights?

[7] It is not for an appellate court to retry the case. I adopt and apply the reasoning of Durno J. in R. v. Salerno, 2000 O.J. No. 3511 (S.C.J.), at para. 7:

I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own findings of fact when there was a basis for those reached by the trial judge. The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made I cannot interfere. [citations omitted.]

[8] The trial judge's decision on questions of law is subject to a "correctness" standard of review; his findings of fact are entitled to deference absent a “palpable and overriding error”: R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.); R. v. Renda, 2005 ONCA 193; Housen v. Nikolaisen, 2002 SCC 33, at paras. 10, 24 and 26-36.

[9] Ms. Rodrigues argued that the trial judge erred in failing to find that the 30 minutes Ms. Rodrigues had to sit handcuffed in the back of the squad car waiting for a female officer to attend resulted in an arbitrary detention. Counsel argued the lack of a policy requiring a female officer be present at every station is what led to the arbitrary detention in this case. But for the fact that Ms. Rodrigues is a woman, he argued the booking process would have taken place as it should. Counsel argued that the trial judge’s findings were unreasonable when considering these circumstances.

[10] In my view, the trial judge’s findings were reasonable and provided an ample basis for his dismissal of the s. 9 application.

[11] Ms. Rodrigues was arrested and handcuffed at 2:36 p.m., with the first breath demand taking place at 2:40 p.m. She was transported and arrived at 41 Division at 3:21 p.m., but no female officer was available to assist with the booking process. Ms. Rodrigues was paraded at 3:50 p.m. and remained in handcuffs until the end of the booking at 4:10 p.m. Ms. Rodrigues provided two breath samples at 5:07 p.m. and 5:43 p.m., over two hours after her arrest.

[12] The arresting officers testified and described that Ms. Rodrigues was emotional and not entirely responsive during their dealings with her, and this was a factor in their decision to not move her handcuffs to the front while she was waiting in the scout car.

[13] The officers testified they were following the Toronto Police Service (“TPS”) Search of Person policy that persons are to be searched by officers of the same gender. Although there was no explanation for why a female officer was not available, the officers testified they were not at their usual division and were not in a position to order a female officer to attend.

[14] The trial judge made the following findings. First, the officers were following the established TPS Search of Person policy requiring that searches of persons be conducted by a person of the same gender, absent unusual circumstances. The trial judge’s conclusion that a decision not to follow this policy would have put the officers in an impossible situation, was reasonable on the evidence. The policy is there for a reason and in this situation, there was no basis for the officers not to follow the policy.

[15] Second, the trial judge also recognized that the officers had no control over which division they would be dispatched to, as that was dictated by the availability of the breath technician. The trial judge accepted the officers’ evidence that they did not have the authority to order a female officer to assist with the search – that would be done through dispatch. This was a reasonable finding based on the evidence of the officers. They were following protocol and the procedures in place at that division.

[16] Third, it was also available on the evidence before the trial judge to find that it was not reasonable in the circumstances to have Ms. Rodrigues handcuffed to the front, given her mental state. I appreciate the argument that there was no direct evidence that she was a danger to herself or others. However, Ms. Rodrigues was crying, meandering in her speech, and in a general state of emotional distress. The concern that Ms. Rodrigues might hurt herself or others if her handcuffs were rearranged was available on the evidence.

[17] There is no doubt that the handcuffs were causing Ms. Rodrigues some discomfort and in fact pain. The trial judge recognized this. He also found that Ms. Rodrigues was already in emotional distress, separate and apart from her being handcuffed sitting in the sallyport. That is what led to the police involvement in the first place. While there is no doubt that being in handcuffs is an uncomfortable, at times painful, experience, the trial judge is owed deference in his finding that the officers’ decision was reasonable notwithstanding Ms. Rodrigues’ discomfort.

[18] As our Court of Appeal stated in R. v. Pileggi, 2021 ONCA 4, at para. 51, “the appellant was an arrestee and the police were entitled to restrain him from moving anywhere beyond their control, both for his own safety and the safety of the officers.” This same reasoning applies here, and the trial judge’s acceptance of the officer’s evidence on this point was reasonable.

[19] In addition, the trial judge noted that the junior officer remained with Ms. Rodrigues when she was in the sallyport, and that she was not left alone for any period of time. The trial judge was also satisfied that part of the delay in bringing Ms. Rodrigues into the division was caused by the unavailability of the booking officer.

[20] Again, the trial judge was entitled to arrive at his own factual determinations and conclusions based on his review of the booking video and assessment of the officer’s evidence.

[21] The trial judge’s conclusions were reasonable and are entitled to deference. I see no basis to interfere with the trial judge's conclusions.

C. Did the Trial Judge Err in Finding that the Breath Samples Should Not Be Excluded Under s. 24(2)?

[22] The trial judge found that if there was a s. 9 violation, he would not have excluded the breath samples under s. 24(2). Counsel for Ms. Rodrigues argues that the trial judge did not properly consider the seriousness of the breach and the impact on Ms. Rodrigues. I am not persuaded by this submission.

[23] The trial judge assessed and accepted the officers’ evidence explaining that they were following TPS procedure, were attempting to do the right thing, were not at their own division, and had alerted the division of the need for a female officer. The 30-minute wait was also caused in part by the delayed arrival of the booking sergeant. While certainly not ideal, the 30-minute delay was not caused by any systemic issues, and this was a reasonable finding on the part of the trial judge. The officers chose to follow an established policy; the delay as a result was 30 minutes. The seriousness of this conduct, if it constituted a violation of s. 9, could only be described as minimal: Pileggi, at para. 36.

[24] The trial judge found that the impact on Ms. Rodrigues was minimal as she was in distress in any event, the officers were respectful at all times, the officers opened the door of the cruiser, and she was never left alone in the sallyport while waiting in the cruiser. Importantly, there was no connection between the alleged breach and the discoverability of the evidence. Regardless of the delay in Ms. Rodrigues being booked, the breath samples would have been taken.

[25] The trial judge was entitled to make these findings and conclude that all three factors weighed in favour of admission. There is no basis to interfere with the conclusion that were there a breach of s. 9, the breath samples would not be excluded.

D. Should Ms. Rodrigues Receive Credit for the Period She Was Prohibited from Driving Pre-Trial?

[26] Counsel for Ms. Rodrigues argues that the trial judge erred by not following Basque in not giving her credit for her pre-trial driving prohibition imposed as part of her release. Counsel asserts that although Ms. Rodrigues was subject to a Ministry of Transportation (MTO) medical driving suspension, that did not change the fact that she was still prohibited from driving due to her bail condition, nor does it make the issue moot.

[27] Ms. Rodrigues was arrested on October 16, 2021, and released on bail the next day. She was able to drive a motor vehicle again as of June 30, 2022. On October 21, 2021, the MTO medical suspension was imposed and remained in effect until July 19, 2022, slightly longer than the bail term.

[28] The trial judge imposed the mandatory minimum sentence of a $1,500 fine and a 12-month driving prohibition. This was so notwithstanding that this offence was committed while Ms. Rodrigues was on release for an impaired driving charge.

[29] The Supreme Court of Canada in Basque stated that sentencing judges have a “common law discretion” to grant credit to an offender for a pre-sentence driving prohibition which was part of their release conditions. This case was decided in the context of s. 259(1)(a) of the Criminal Code which has now been replaced by s. 320.24(2)(a).

[30] Basque, at para. 3, refers to the finding from R. v. Lacasse, 2015 SCC 64, a case that did not concern a mandatory driving prohibition, “that there is a common law judicial discretion to grant credit for a pre-sentence driving prohibition. This discretion is a natural extension of the longstanding practice of crediting offenders for periods of pre-sentence custody.”

[31] The spirit of this guidance from Basque is rooted in the fundamental requirement of justice and fairness in not permitting “double punishment”. In Basque, the accused had already been prohibited from driving for a period of 21 months, and to impose an additional one-year prohibition would have amounted to a “kind of double punishment”. Although the one-year driving prohibition was ordered, the sentencing judge found that it was already satisfied.

[32] In this case, although there was a release condition prohibiting Ms. Rodrigues from driving, the MTO had already decided that she was not medically fit to drive a motor vehicle. The trial judge found that whether or not Ms. Rodrigues was prohibited from driving as a term of her release, she was nevertheless unable to drive for the equivalent time frame for medical reasons. The trial judge agreed that the issue was in effect moot because she was not permitted to drive in any event.

[33] The trial judge was entitled to exercise his discretion not to award Ms. Rodrigues credit for her pre-trial driving prohibition. Credit for a pre-trial driving prohibition is discretionary: Basque, at para. 3. The trial judge’s finding that Ms. Rodrigues was not being “doubly punished” by not receiving pre-trial credit for the time she was prohibited from driving given the MTO medical suspension was a reasonable one.

[34] In addition, in my view, this was an entirely fit sentence given the aggravating factor that this offence occurred while Ms. Rodrigues was on release for a similar offence. Ms. Rodrigues was given the minimum fine and the minimum driving prohibition, when it would well have been within the judge’s discretion to hand down a higher sentence.

[35] Given these findings, I decline to address the issue of how the reading together of ss. 320.24(5.1) and 320.24(9) should be applied in a case where the accused was subject to a pre-trial driving prohibition and an MTO suspension for medical reasons.

[36] The appeal is dismissed.

J.K. Penman
Released: March 3, 2025