Case Name:
R. v. [REDACTED]
Between
Her Majesty the Queen, and
[REDACTED]
[2015] O.J. No. [REDACTED]
2015 ONCJ [REDACTED]
335 C.R.R. (2d) [REDACTED]
Ontario Court of Justice
[REDACTED]
May 6, 2015.
(61 paras.)
Counsel:
[REDACTED], for the Crown.
[REDACTED], for [REDACTED].
Reasons for Judgment
[REDACTED]:--
Introduction
1 On March 15, 2014, [REDACTED] was charged with impaired driving and with driving while having over 80 mg of alcohol in 100ml of blood. The charges related to her driving her motor vehicle after attending a party on this same date. At the close of the trial, Crown counsel invited me to find [REDACTED] not guilty on the charge of impaired driving as there was insufficient evidence that her ability to operate a motor vehicle was in fact impaired by alcohol on the day in question. In relation to the remaining count, the bulk of the issues centered around allegations that [REDACTED]'s rights under the Charter were violated.
The Initial Encounter with [REDACTED]
2 On March 15, 2014, a call came in to the police in relation to a potential impaired driver. D.C. [REDACTED] and P.C. [REDACTED], in response to this call, attended at the area of Barton and Euclid to investigate this complaint.
3 D.C. [REDACTED] testified that upon arriving on site he saw three males and one female surrounding a vehicle. He identified [REDACTED] as the sole female. According to D.C. [REDACTED], he spoke to all the persons present and detected an odor of alcohol on everyone present. It was his opinion that all four persons appeared to be drinking and upon being asked, they all admitted to consuming alcohol at a nearby party. D.C. [REDACTED] was unable to recall many other details about this initial interaction.
4 P.C. [REDACTED] testified that when he and D.C. [REDACTED] arrived on scene, only three people were standing outside the vehicle. The fourth person was actually in the driver's seat of the motor vehicle. P.C. [REDACTED] went and spoke to this person. According to P.C. [REDACTED], the male in the driver's seat of the vehicle appeared very intoxicated, so much so that when P.C. [REDACTED] asked the male for the key he was using to start the vehicle, he handed over a bicycle key instead of a car key.
5 [REDACTED] advised the officers that the vehicle belonged to her and that she had no intention of driving. P.C. [REDACTED] and D.C. [REDACTED] then advised all four of the individuals not to drive. At this point, the officers saw all four persons walk away from the motor vehicle and towards a cab. The officers then left the scene.
The Arrest
6 Within ten minutes of leaving the scene, the officer received another call from dispatch advising that the vehicle related to the above incident had hit a parked vehicle and was now in motion. D.C. [REDACTED] and P.C. [REDACTED] returned to where the vehicle had originally been parked to investigate and confirmed that the vehicle had moved. P.C. [REDACTED] testified that they looked at the nearby parked vehicles for some sign of an accident, but he could not see any damage to the vehicles in the area.
7 The officers then received a communication that another cruiser had located the subject vehicle. The officers drove to that area which was near Markham and Harbord arriving on scene at 4:03 a.m. Upon arriving on scene, P.C. [REDACTED] spoke to the other officer on scene while D.C. [REDACTED] investigated [REDACTED] who was sitting in the driver's seat of the motor vehicle. Both officers noticed that the back window was smashed, and that a ski pole was sticking out of the window. D.C. [REDACTED] also testified that there were scuff marks to the front of the vehicle. P.C. [REDACTED] testified that the only damage he had seen was the broken window.
8 When D.C. [REDACTED] approached [REDACTED] in the driver's seat of her motor vehicle, she appeared to not understand why she was stopped. D.C. [REDACTED] then arrested her for impaired driving. D.C. [REDACTED] testified that he made the arrest in light of his previous contact with [REDACTED], his opinion that she had been in a car accident, the odor of alcohol on her breath and the fact that she appeared to him to be disoriented. This last opinion was based on the fact that [REDACTED] seemed to be surprised that she had been stopped despite the fact that he had told her only ten minutes earlier not to drive.
9 After her arrest, [REDACTED] was given her rights to counsel and the breath demand. She was then taken to 22 Division.
Events at the station
10 Upon arrival at the station at 4:28am, [REDACTED] and the officers remained in the police cruiser for 17 minutes. D.C. [REDACTED] testified that he did not know why they had to remain in their cruiser for this long. P.C. [REDACTED] testified, however, that under the new booking system, all information has to be inputted into the computer system and sent electronically to the booker before the person in custody can be paraded or access counsel. While the old system allowed persons in custody to be paraded relatively quickly, the new system frequently takes 15 minutes or longer.
11 Once inside the station, [REDACTED] was paraded and duty counsel was called. After her conversation with duty counsel was over, [REDACTED] had to wait an additional five to ten minutes before she was taken out of the phone booth and into the breath room.
12 The first breath sample was taken at 5:40 a.m., over an hour after she arrived at the police station. The second sample was taken at 6:03 a.m. She blew 130mg of alcohol in 100ml of blood and 110 mg of alcohol in 100ml of blood respectively.
The decision to hold for a bail hearing
13 [REDACTED] is an American citizen. At the time of her arrest she had lived in Toronto for six years, was gainfully employed (at two jobs), had a valid work permit for three years ending in October of 2016, had no prior record and while she blew over 80, she was not displaying any overt signs of impairment. Nonetheless, [REDACTED] was not released from the station and instead, was held for a show cause hearing.
14 D.C. [REDACTED] testified that it was not his role to decide whether or not [REDACTED] should be released from the station or held for a show cause hearing and he played no role in this decision on the night in question. He further testified, however, that while he did not have a role in this decision on the night in question, he does, as part of his present duties as a detective constable address release issues in other cases. D.C. [REDACTED] testified that it was his understanding that there is a Toronto Police Policy that everyone who is not a Canadian citizen must be held for a show cause hearing. In re-examination D.C. [REDACTED] clarified that anyone "not from Ontario" must be held for a show cause hearing.
15 D.C. Scott [REDACTED] was on duty at the division the night that [REDACTED] was arrested. He was present when the detective of the station, Detective [REDACTED], made the decision to hold [REDACTED] for a show cause hearing and was privy to the discussion surrounding this decision. He was effectively in training at the time, and hence did not have the authority to make the decision about release but was party to all the discussions. D.C. [REDACTED] testified that the discussion about whether or not to release [REDACTED] from the station focussed solely on the fact that [REDACTED] was an American citizen living in Canada on a work permit. D.C. [REDACTED] testified that there was a flight concern in this case because people "can lose their jobs". When asked more about the decision to detain [REDACTED] for a show cause hearing, D.C. [REDACTED] testified that he knew nothing about [REDACTED]'s actual ties to the community or how long she had lived in Toronto. The discussion focussed solely on the fact that she was here on a work permit which expired in October of 2016 (so 2 1/2 years later).
16 Det. [REDACTED], an officer not involved directly with this case, testified that he has been a detective for eight or nine years. His sole purpose in testifying was to provide the court with the policies of the Toronto Police Services around the issue of release. Det. [REDACTED] confirmed that there is no policy to hold persons that are only in Toronto on a work permit for a show cause hearing.
[REDACTED]'s evidence
17 [REDACTED] testified that on the night in question she went to a party where her boyfriend, [REDACTED], was the designated driver. The plan was that he would drive her home that night using [REDACTED]'s vehicle. As she was not planning on driving, [REDACTED] consumed three beers and a shot of whisky at the party. [REDACTED] and some friends left the party at approximately 2:30 or 3:00 a.m. One of [REDACTED]’s friends, who was very intoxicated, followed them to the car and started being difficult. This friend entered the vehicle and sat in the driver's seat and would not leave. [REDACTED]'s boyfriend tried to pull his friend out of the vehicle, but his friend just threw punches at him.
18 The police arrived a few minutes later and things settled down a bit. According to [REDACTED], it was at this point that the person who had been in the driver's seat left the area. The rest of them remained near the vehicle. [REDACTED] testified that after the police left the area, the trouble maker returned. At this point, [REDACTED]'s boyfriend decided to leave, citing safety concerns. He took his belongings out of [REDACTED]'s trunk and left.
19 According to [REDACTED], the trouble maker left at the same time, leaving [REDACTED] and her friend [REDACTED], alone. At this point, [REDACTED]closed the trunk of the car. As she did this, [REDACTED]'s ski pole was sticking out and it smashed the back windshield.
20 A discussion then ensued between [REDACTED] and [REDACTED] about getting home. [REDACTED] testified that while she had consumed alcohol on the night in question, she did not feel impaired and felt sober and capable of driving. As a result she decided to drive her and her friend home.
21 Moments after leaving the area, [REDACTED] was pulled over by a police officer. [REDACTED] testified that she was arrested, put in hand-cuffs and placed in the back of the police cruiser. She was then taken to 22 Division where she provided two samples of her breath into the breathalyzer. Once the breath tests were completed [REDACTED] was taken to 14 Division. [REDACTED] testified that she thought she was going to be released from 14 division but she was placed in a cell instead, next to someone who was screaming at the top his lungs for 1/2 an hour.
22 After some time, D.C. [REDACTED] advised [REDACTED] that she would be held for a bail hearing.
23 [REDACTED] testified that she told the police that she had lived in Toronto for six years, went to school here and had lived in the same apartment for a long time. The in-car video of [REDACTED] on route to the station confirmed that [REDACTED] did provide this information to the police.
24 The next morning [REDACTED] was taken to the court. While on route the officer had to turn back and return to the station because he forgot some paper work. Once at the courthouse, [REDACTED] was placed in a cell and told not to use the toilet because it was backed up. [REDACTED] testified that she had to sit beside a backed up toilet for hours waiting for her matter to be addressed in court.
ISSUES
25 At trial the following issues were raised:
a) Whether [REDACTED]'s rights as guaranteed by section 8 of the Charter were violated when she was arrested and compelled to provide a breath sample at the station absent sufficient grounds to make the arrest and the demand?
b) Whether the breath tests were taken as soon as practicable; and,
c) Whether [REDACTED]'s rights as guaranteed by section 9 right of the Charter were violated when she was held for a show cause hearing instead of being released from the station.
Section 8 - Grounds to Make the Arrest and the Breath Demand
26 D.C. [REDACTED] arrested [REDACTED] for impaired driving. He testified that while he had not seen her driving, he had been told by others that she had been driving and was in the driver's seat of the vehicle when he arrived. In my view this is a sufficient basis for the officer to have reasonable and probable grounds to believe that [REDACTED] had been driving her motor vehicle.
27 In relation to his grounds for believing that [REDACTED]'s ability to operate her motor vehicle was impaired by alcohol, D.C. [REDACTED] cited the following:
a) She admitted to consuming alcohol when he had spoken to her and her friends 10-15 minutes earlier;
b) It had been his opinion when he spoke to her the first time that she was impaired although he was unable to point to any specific conduct that assisted him in reaching this conclusion nor did he have any extended communication with her away from the rest of the group;
c) He had received information that she had been in an accident, although the person who gave this information was not interviewed and there was no sign of an accident at the location where the accident allegedly took place;
d) He detected an odor of alcohol from her at time of vehicle stop; and,
e) She seemed disoriented.
28 In determining whether the officer had sufficient grounds to arrest [REDACTED] for impaired driving, I am mindful that merely because there may be exculpatory explanations for the officer's observations, this does not detract from the officer's grounds to make the arrest. The standard of reasonable and probable grounds is lower than a prima facie case. Moreover, trial judges must keep in mind the context of an arrest in that they are often made suddenly and in volatile situations. In assessing whether an officer has reasonable and probable grounds to arrest someone for impaired driving, the focus should be on the presence or absence of indicia of impairment and the veracity and reliability of the officer's evidence.
29 D.C. [REDACTED] testified that [REDACTED] admitted to consuming alcohol. Defence counsel took no issue with this assertion and I accept that when first approached by the officers, [REDACTED] and some of her friends made this admission. I also accept that the officer detected an odor of alcohol from her breath during his second interaction with [REDACTED] just prior to her arrest. I place no weight, however, on the officer's opinion that [REDACTED] was impaired during his first interaction with her and her friends. D.C. [REDACTED] did not have an extensive exchange with [REDACTED] during the first interaction and he did not speak to her alone at any point. When asked to provide the basis for his opinion, the officer could not point to any action that led him to conclude that [REDACTED] was impaired other than the fact that she was coming from a party, had admitted to consuming some unknown quantity of alcohol and was part of group that were causing a disturbance. In my view, these factors are not sufficient to support the conclusion that [REDACTED]'s ability to operate a motor vehicle were impaired or that she was intoxicated at the time. It may very well be that his opinion that everyone in the group was impaired was founded on something more at the time, but in the absence of this evidence at trial and taking into account [REDACTED]'s evidence that she was not impaired at the time, I place no weight on the officer's conclusion.
30 One of the other factors D.C. [REDACTED] relied on to arrest [REDACTED] was that she had been in an accident with a parked car as she was leaving the area. There may be cases where an unexplained accident coupled with the odor of alcohol and an admission of consumption of alcohol will provide sufficient grounds to arrest for impaired driving. In this case, however, by the time of the arrest, the officer did not have a strong basis to believe that an accident had actually taken place. In fact, by the time of the arrest, the investigation suggested that no accident had taken place. I appreciate that an unknown person called in and reported that [REDACTED]'s vehicle hit a parked car, but the officers attended the location and examined the parked cars and saw no damage to any vehicle. This information alone should have called into question the reliably of the information received. Moments later when the officers actually saw [REDACTED]'s car the only damage visible was to the back windshield. Moreover, the area of the car where one would expect to find damage if an accident had in fact occurred had no damage. I appreciate that D.C. [REDACTED] testified that he saw scuff marks to one front panel of [REDACTED]'s car, which would have been consistent with an accident, but I completely reject his evidence on this point and find that there was no damage to the front of the vehicle. I reject his evidence on this point for the following reasons:
a) This observation was not in the officer's notes;
b) The officer failed to make any reference to this damage in his examination in chief. It only arose when he was being cross-examined about the accident;
c) D.C. [REDACTED] testified that despite the fact that the damage he claims to have seen on the front panel of the vehicle was not in his notes, he nonetheless has a good recollection of this. It was clear from his evidence, however, that his general memory of the events from this evening was quite poor. D.C. [REDACTED] could not remember most other details that were not in his notes including the conversation between himself and [REDACTED] on route to the station and the conversations and observations made during their first interaction. Notably, both [REDACTED] and P.C. [REDACTED], whose evidence I do accept, testified that during the initial encounter by the parked car, a very impaired male had been in the driver's seat of the motor vehicle, trying to start it with a bicycle key. D.C. [REDACTED] testified that no one was in the vehicle when he arrived. D.C. [REDACTED] could also not recall other important details like whether [REDACTED] was unsteady on her feet or whether other common indicia of impairment were present. In light of all this, it is difficult to have any confidence in D.C. [REDACTED]'s memory about events not recorded in his notes;
d) P.C. [REDACTED] who was also at the scene, and whose evidence I do accept, did not see this damage. Moreover, [REDACTED], whose evidence I also accept testified that there was no such damage to her vehicle;
e) No other vehicles in the area where the accident is said to have occurred were damaged; and,
f) [REDACTED] was not ever charged with any offence related to an accident (for example: leaving the scene of an accident).
31 When I consider all the evidence, in my view, D.C. [REDACTED] overstated the damage to [REDACTED]'s vehicle. I further find that he did so for the sole purpose of bolstering his grounds for arresting [REDACTED]. There is no other logical explanation for the officer adding in additional evidence of an accident that did not exist. Given this finding, I have real concerns about the veracity of D.C. [REDACTED]'s evidence as it relates to all his grounds for the arrest and I am unable to rely on D.C. [REDACTED]'s evidence as it relates to his grounds for arrest where there is no confirmatory evidence.
32 This leads me to the final factor relied upon by D.C. [REDACTED] in forming his grounds to arrest [REDACTED] -- the fact that she was "disoriented". I reject the officer's conclusion that [REDACTED] was disoriented in any way at the roadside or during the ride to the police station. In reaching this conclusion, I note that when asked why he concluded that [REDACTED] was disoriented, the main factor he pointed to was that [REDACTED] she seemed surprised that she was stopped. In my view, the fact that [REDACTED] was surprised she was stopped and did not understand why she was stopped when it had not yet been explained to her does not, by itself, support the conclusion that [REDACTED] was disoriented. Moreover, a review of the in car video of [REDACTED] on route to the police station establishes that, at least during the relatively lengthy car ride, [REDACTED] did not show any signs of being disoriented. In fact, she appeared to appreciate exactly what was going on. Given this evidence and my previous comments about my overall concern with the officer's veracity, I reject the officer's testimony that [REDACTED] was disoriented at the relevant time.
33 Given these findings of fact, the question I must address is whether considering all the evidence I do accept, did the officer have grounds to arrest [REDACTED]. In other words, did D.C. [REDACTED] have reasonable and probable grounds to believe that [REDACTED] was driving while her ability to do so was impaired by alcohol or drug? To that end, I accept the following;
a) During the first interaction with the officers, [REDACTED] admitted to having consumed some alcohol;
b) There was an odor of alcohol on her breath;
c) There was damage to her rear windshield;
d) She had been told ten minutes earlier not to drive, but nonetheless drove;
e) The officers had the impression that the people by the car, including [REDACTED] had been drinking but could not recall the foundation for this opinion; and,
f) The officer arrested [REDACTED] moments after arriving on scene.
34 I appreciate that one would hope than when an officer instructs someone not to drive (as long as there is a basis for this instruction), that person would not drive. The decision to nonetheless drive, by itself does not give sufficient grounds to arrest. The odor of alcohol coupled with an admission that alcohol had been consumed absent other indicia of impairment is also not a sufficient basis to arrest for impaired driving. In my view, when I consider all the grounds outlined above, the officer did not have sufficient basis to form reasonable and probable grounds to arrest. In my view, D.C. [REDACTED] attended on scene, pre-judged the situation without making any inquires or conducting any investigation. Within moments of approaching [REDACTED], without making any further inquiries, he arrested her. While the officer clearly had grounds to make the ASD demand or conduct further investigations, in my view, he did not have sufficient grounds to arrest.
35 As the officer had no basis to arrest [REDACTED], he also had insufficient grounds to make a breath demand. As a result, I find that samples of her breath that were taken at the station were taken in violation of [REDACTED]'s section 8 Charter rights.
Section 24(2) of the Charter
Relevant legal principles
36 Pursuant to section 24(2) of the Charter, the Applicant has the burden of establishing on a balance of probabilities that admission of the evidence would put the administration of justice into disrepute. In R. v. Grant, [2009] 2 S.C.R. 353, the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(1) The seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious state misconduct)
(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) Society's interest in the adjudication of the case on its merits.
The Court's role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
Application of the law to the case at bar
(i) Seriousness of the Charter-infringing state conduct
37 In the case at bar, [REDACTED] was arrested for an offence where the officer had no grounds to make this arrest. He did, however, have the grounds to make an ASD demand. This reality, in most cases, would lead to the conclusion that while jumping the gun, so to speak, should not be condoned, the behaviour in question is not so egregious as to warrant exclusion of the evidence. Under this prong, however, I am entitled to consider the overall police conduct including the presence or absence of a pattern of non-compliance with the Charter. In the case at bar, in addition to the section 8 breach outlined above, the officers also breached [REDACTED]'s section 9 rights by failing to release her from the police station and holding her for a show cause hearing instead. As outlined in my reasons below, the officers had no basis to hold [REDACTED] for a show cause hearing and only did so because they mis-understood the law on this point and thought they had to hold anyone who was not a permanent resident in Ontario for a show cause hearing. While I have no basis to conclude that the officers were acting maliciously, there is evidence that the officers did not appreciate relevant, long standing laws.
38 In light of the fact that there were two charter breaches, one of which was very significant, and both based on mis-apprehension of well-established laws, this prong militates in favour of exclusion of the evidence.
(ii) Impact of the breach on the Charter-protected interests of the accused
39 In my view, the impact of the section 8 charter breach alone is not substantial. Realistically, given the results of the breathalyzer tests at the station, it is likely that [REDACTED], had she been given the opportunity to provide a sample of her breath into an approved screening device, would have blown a fail, thereby giving the officers grounds for arrest. Having said that, I cannot ignore the section 9 Charter breach that occurred at the station immediately following the section 8 breach. [REDACTED] was kept in custody for many hours longer than required, was taken to court and placed in a cell with a toilet that was backed up. When I consider the impact of all the breaches on [REDACTED], I am of the view this prong militates in favour of exclusion of the breath samples.
(iii) Society's interests in adjudication on its merits
40 There is a strong societal interest in trying cases of impaired driving on their merits. This is a serious offence that has the potential of risking the lives of many innocent persons. Moreover, the results of the breath tests are reliable and are necessary for the successful prosecution of this case. In my view, this prong militates in favour of inclusion of the evidence.
41 In balancing all three factors, in my view this case is a very close call. The section 8 breach standing alone would not in the ordinary course result in the exclusion of the evidence. The section 8 breach, however, does not stand alone. There is a second serious breach that this court must also consider. I am mindful that impaired drivers are a menace to society and that they place the safety of all persons on the road and sidewalks at risk. The offence of impaired driving is so serious and dangerous that Parliament has enacted legislation to give police special powers to investigate and detect impaired drivers. Without the highly reliable results from the breathalyser test, the Crown will be unable to successfully prosecute this case. There is always a very strong societal interest in trying impaired driving charges on their merits. Having said that, when I balance all the relevant factors, I am satisfied that the defence has established that inclusion of the breathalyser readings, given the nature of violations, would bring the administration of justice into disrepute and I will exclude the blood-alcohol readings.
As soon as practicable
42 Counsel for [REDACTED] argued that the presumption of identity cannot be relied upon in the case at bar because the tests taken at the station were not taken as soon as practicable. Counsel for the Crown argued that while there was a slight delay at the station, the delay was reasonable and as such the presumption of identity should apply.
43 It is well established that for the presumption of identity to apply, the breath tests taken at the station must be taken as soon as practicable. In assessing whether or not the tests were taken as soon as practicable, the court is required to look at the whole chain of events. The Crown is obligated to demonstrate that in all the circumstances "the breath samples were taken within a reasonably prompt time". There is no requirement, however, that the Crown provide a detailed explanation of every minute that has passed (see R. v. Vandenbruggen, [2006] O.J. No. 1138 (C.A.) at paragraphs 13 and 14).
44 In the case at bar, counsel for [REDACTED] points to two different periods of delay that occurred at the police station. The first time period is the approximately 17 minutes spent in the sally port while the officers inputted the data from the arrest into the computer. The Toronto police service has implemented a new system for booking in people that are charged with offences. This new process requires the police to input the data into a computer system prior to entering the station. While under the old process, the delay in the sally port took only minutes, according to P.C. [REDACTED], under the new system, the time in the sally port can take as long as 30 minutes. The evidence before me is that at the time of this offence, the booking process was relatively new. Like most new systems, they take time to get used to and are often slow at first. There is also no evidence that this new process is unnecessary or inappropriate. When I consider all this evidence, while the booking process may have been slow it was justified and appropriate in the circumstances.
45 The second delay relates to a time frame of five to ten minutes when [REDACTED] had completed her call to counsel but was waiting in the phone booth for the officers. There is no exact time for how long [REDACTED] waited in the phone booth. [REDACTED] thought it felt like ten minutes and the officers thought it was five minutes. In my view, either way this is a very short delay. When I consider both periods of delay raised by counsel, I am satisfied that the breath tests were taken in a reasonably prompt time.
Section 9 of the Charter
46 At the time of her arrest, [REDACTED] was an American citizen. She was nonetheless, an ordinary resident of Toronto. She had gone to school in Toronto, had an apartment in Toronto, had a job in Toronto and had a valid work permit for three years. It was clear that [REDACTED] had lived in Toronto for quite some time by the time of her arrest. [REDACTED] had no criminal record and her breath results, while over 80, were not so high that they raised concerns about her safety if released and she was not visibly impaired. Nonetheless, [REDACTED] was held in custody for a show cause hearing.
47 The officer who made the decision to detain [REDACTED] for a bail hearing did not testify at trial, but another officer from the station, who had been in training and who had been privy to the reason for holding [REDACTED] for a bail hearing, did testify. According to this officer, D.C. [REDACTED], the only discussion that took place around release was that [REDACTED] was an American citizen. It was his understanding that it was because of this fact alone that the decision was made to hold [REDACTED] for a bail hearing. The Crown conceded that this was incorrect. She further conceded that [REDACTED]'s rights as guaranteed by section 9 of the Charter were violated when she was held for a show cause hearing. I agree. The fact of being an American citizen is not an automatic bar to release from the station. Section 498 of the Code provides;
(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,
(a) release the person with the intention of compelling their appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
48 It is clear from this long standing section of the Criminal Code that one need not be held for a show cause hearing merely because the person arrested is an American citizen. Instead, the officer must consider the factors set out in s. 498 of the Criminal Code. The officers in the case at bar did not consider these factors. In fact the officers did not even discuss [REDACTED]'s long standing residence in Toronto or whether or not this person, with no criminal record, would attend court. I therefore find that when [REDACTED] was held for a show cause hearing, entirely because she is an American citizen who was ordinarily a resident of Toronto, her section 9 rights were violated. The detention was unlawful and arbitrary.
Section 24(1) of the Charter and the Stay of Proceedings
49 It is well established that the remedy of a stay of proceedings is a remedy that should only be resorted to in the clearest of cases given society's interest in having matters tried on their merits. In R. v. Zarinchang, [2010] O.J. No. 1548 (CA), the court summarized the relevant legal principles as they relate to a stay of proceedings:
(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.
(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:
(i) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and
(ii) No other remedy is reasonably capable of removing that prejudice.
(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider- the balancing of the interest in granting a stay against society's interest in having a trial on the merits.
50 The court went on to state that where the residual category is being relied upon, the focus is on the integrity of the justice system. The residual category, however, is not a means for courts to address all on going systemic problems. Instead, the court must "consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against the accused outweigh the interest in having the case decided on the merits?"
51 In the case at bar, trial fairness is not impacted by the charter breach. The defendant therefore is relying on the residual category to support the remedy of a stay of proceedings. To that end, counsel for [REDACTED] provided numerous cases where trial judges have stayed the proceedings where the police improperly failed to release a defendant from the station (see R. v. Boyce [2003] O.J. No. 5498 (OCJ) and R. v. Waisanen, [2014] O.J. No. 5021 (OCJ)). In most of the cases provided, however, the defendant suffered additional prejudice beyond his or her mere detention because of the breach including strip searches, being held for many many hours in a cell or being videotaped while using the washroom.
52 In pointing out these differences, I do not mean to minimize the impact of the breach on [REDACTED]. She was held for a number of hours at the police station before being taken to court. She was worried that she would not arrive at court in time to be released given the delays in leaving the station, when she was finally arrived at court she was placed in a cell with a toilet that was backed up and had the ongoing fear that she would not have her matter dealt with that day. I have no doubt that this was extremely stressful for [REDACTED] and as the Crown conceded, it was completely unnecessary. Having said that, in many of the cases I have reviewed, the personal prejudice suffered by the defendant was greater and this clearly had an impact on the decision on whether or not to stay the charges.
53 It is also an important consideration that the section 9 breach is not temporally or causally connected to the investigation. In R. v. Iseler, [2004] O.J. No. 4332 (CA), in assessing the appropriateness of granting a stay of proceedings where the police held Mr. Iseler in a cell for 11 hours without any police contact or explanation for the detention, the Court noted that the conduct in question took place after the investigation had been completed and did not impact trial fairness. The court concluded that a stay of proceedings was not warranted. The Crown argued that given the similarities between the two cases, the charge in this case ought not be stayed.
54 In R. v. Mok [2014] O.J. No. 44 (S.C.J.) the reviewing court, in assessing the appropriateness of a stay of proceedings for a section 8 breach, stated:
When assessing whether any case is one of the "clearest of cases" requiring a stay, the Court must keep in mind that a stay of proceedings is a prospective remedy. This Court must follow the instruction of the Supreme Court, as set out at para. 91 of Tobiass, [1997] 3 S.C.R. No 391, as above,
* A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O'Connor, [1995] 4 S.C.R. No. 411, at para. 82 ... The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well -- society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.
55 In finding that a stay of proceedings was not appropriate, the appellate Court in R. v. Mok, reminded itself that a stay of proceeding is a remedy of last resort and in the absence of evidence that the breach was a result of systemic issues, the police should have been given an opportunity to remedy the problem.
56 In the case at bar, unlike the facts in R. v. Mok, supra and R. v. Iseler, supra, there is actual evidence of a systemic problem within the police force as it relates to understanding the longstanding laws relating to release. In reaching this conclusion, I note that firstly, this is not the first case where a non-citizen has been held for a show cause hearing because the police improperly understood section 498 of the Criminal Code. Counsel were able to provide me with quite a few cases where accused persons were held for show cause hearings when they ought to have been released from the station. Moreover, just recently Justice Bornstein in R. v. Doyon, [2015] O.J. No. 1100 (O.C.J.) stayed the charges against Mr. Doyon in part because of the police failure to properly understand section 498 of the Criminal Code.. In reaching this decision, Justice Bornstein noted at paragraph 48,
Finally, the evidence leads to the strong inference that it is the policy of both police divisions, at a minimum, to require a bond but more likely, to hold for a show cause persons who are from out of Province. There is no reason to think this was isolated to Ms. Doyon. Everything moved inevitably to that outcome. Her attempt to question or reason with the officers was ignored or dismissed out of hand.
57 Secondly, there was evidence presented during [REDACTED]'s trial that officers in training are being led to believe that non-permanent residents must be held for a show cause hearing and the officers are not being trained to consider the factors set out in the Criminal Code. At the time of [REDACTED]'s arrest, D.C. [REDACTED] was not a detective and was not in a position to make decisions about release. Since [REDACTED]'s arrest, however, he has been promoted. As part of his new duties, D.C. [REDACTED] does make the final decision on release. D.C. [REDACTED] testified that it was his understanding that it was a policy of the Toronto Police to hold accused persons who are not from Ontario (which as is clear from his evidence, he interpreted as meaning non-permanent residents) for show cause hearings (the Crown concedes no such policy exists). So despite his relatively recent training, D.C. [REDACTED] does not have a proper understanding of police policy or of the law around releasing accused persons from the station. This is not surprising in light of D.C. [REDACTED]'s evidence on this point. D.C. [REDACTED], was a detective in training at the time of [REDACTED]'s arrest, as a trainee, the only issue that the detectives at the station raised with him about why [REDACTED] should be held for a show cause hearing was that she was not a permanent resident of Canada and as such she was a flight risk.
58 I appreciate that Detective [REDACTED], who came to court solely to provide a copy of the Toronto Police Policies, confirmed that there is no policy to detain non-citizens for a show cause hearing. I further appreciate that he understood the application of section 498 of the Criminal Code, but in my view, this does not lead me to conclude that the problem is not systemic. Fortunately, some officers are being trained properly. Nonetheless, on the evidence before me, there is clearly an ongoing training issue on the factors officers must consider in determining whether or not a person should be released from the station or held for a show cause hearing.
59 I appreciate that [REDACTED]'s focus is on her individual prejudice, but the prejudice that concerns this court is the evidence that despite it being well established by Parliament what factors the police must consider in determining whether to release someone from the station, many officers are not being taught this. Instead people who should be released from the station are being detained in custody until they can be brought to court for a show cause hearing.
60 At the end of the day, the question I must really ask is whether a stay of the proceedings is an appropriate price for society to pay to correct this systemic training issue keeping in mind society's strong interests in a trial on the merits. As noted above, drinking and driving is a very serious offence that puts the lives of people at risk. A systemic training issue that impacts individual's liberty, however, is equally serious. Moreover, [REDACTED] has already received a significant punishment in that she was held in a cell at the police station for hours, and then in a cell at the court that had a backed up toilet. I also note that the Crown has invited me to find [REDACTED] not guilty on the charge of impaired driving given the absence of evidence of actual impairment. Furthermore, I accept [REDACTED]'s evidence that she was not impaired at the time of driving.
61 Balancing all these factors, I am satisfied this is one of the clearest of cases where a stay should be granted.
[REDACTED]
