r v. LLOYD HARVEY, 2017 QCCQ 4409

R. c. Harvey 2017 QCCQ 4409 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Criminal and Penal Division No: 455-01-014013-159 DATE: April 11, 2017 ______________________________________________________________________ BY THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

LLOYD HARVEY Accused ______________________________________________________________________ JUDGMENT ON ACCUSED’S MOTION FOR EXCLUSION OF EVIDENCE ______________________________________________________________________ [ 1 ] Lloyd Harvey filed a motion alleging the violation of some of his rights guaranteed under the Canadian Charter of Rights and Freedoms (the “Charter”).

He is alleging that violations occurred when he was arrested for impaired driving, and that because of those violations, the evidence concerning him should be excluded. [ 2 ] To rule on this, I must summarize the facts. [ 3 ] The events occurred at around 5:00 p.m. on December 17, 2014. The emergency police services received an initial telephone call from a woman saying that an intoxicated man was about to leave the Domaine du Parc shopping mall in Cowansville. She said he was looking for his vehicle.

The woman provided a description of the vehicle, including the licence plate number. [ 4 ] A few minutes later, the same person called again, saying that the intoxicated individual was then in his vehicle and had left in a direction that she provided to the police. It turned out that the person in question was the accused’s spouse. This information was given to the police officers who were sent to take care of the call. [ 5 ] The police officers in question were officers Côté-Rioux and Malouin. [ 6 ] They found the vehicle quickly and began following it.

Without going back over all of the details, here is what they observed. [ 7 ] The vehicle was going more slowly than the legal limit, that is, at around 40 kilometers/hour in a zone where the legal speed limit was 50 kilometers/hour. For a considerable distance, the vehicle had its left-hand tires on the median line. At a mandatory stop, it came to a halt very, very slowly, and then started up again just as slowly. After having performed a mandatory stop at the corner of rue Principale and boulevard Pierre-Laporte, Lloyd Harvey proceeded onto boulevard Pierre-Laporte.

Considering that it was time to intercept the accused to check on his condition, they turned on the rotating lights. The accused did not stop. The horn had to be used three times, and then the siren before the accused pulled over onto the shoulder. However, he did not stop immediately, but continued to drive very slowly on the shoulder, without stopping. [ 8 ] When he finally stopped, the police officers went up to him and immediately noticed a strong smell of alcohol coming from the interior of the vehicle. Lloyd Harvey was the only person in the vehicle.

The accused immediately informed one of the police officers that he had consumed alcohol. Officer Côté-Rioux said that the accused had difficulty giving her his documents. She described him as holding his documents in one hand and “pinching” them with the other, without managing to extract the one requested in a normal manner. The police officer noted that the accused’s speech was slurred, and that his eyes were red and glassy. [ 9 ] Lloyd Harvey gave a document to the police officer, telling her it was his driver’s licence. It was the vehicle registration.

The police officer had to ask him for his driver’s licence again. At certain points, Lloyd Harvey did not seem to react, or at least he required a certain time lag before reacting. [ 10 ] Confronted with the fact that the document he had provided was not his driver’s licence, the accused said that it was in his wallet, which was in the back pocket of his pants and difficult to access, in particular because of his winter coat. He asked the police officer if he could get out of the vehicle to have easier access to it. She gave him permission to do so, but instead of getting out of his

vehicle, he continued to try to get his wallet out of his back pocket. He finally succeeded. [ 11 ] The police officer also had to ask him more than once to turn off the motor of his vehicle. She then asked him to get out of it. He seemed to have clumsy legs, according to the police officer. When he got out of his vehicle, he lost his balance and she had to support him; then she asked him to follow her to the back of the vehicle.

He lost his balance again in the course of doing so. [ 12 ] He was arrested behind the police car at 5:12 p.m. [ 13 ] With this factual basis, Lloyd Harvey is claiming that the police officers who arrested him did not have reasonable and probable grounds to believe that he had committed a criminal offence, that his arrest was based only on suspicions and that, following that illegal arrest, the evidence obtained should be excluded. [ 14 ] Only the two police officers testified. The accused did not testify.

ANALYSIS AND DECISION [ 15 ] When an individual contends that his or her rights have been violated, it is up to that individual to prove the violation. This does not mean that the individual must necessarily testify, on the contrary, but it does mean that he or she must provide, in support of his or her arguments, cogent evidence, on a balance of probabilities, of the accuracy of his or her claims. [ 16 ] Although the heading of the motion refers to certain sections of the Charter , only

section 9 , which reads as follows, is in question: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 17 ] There are very many obstacles to the accused’s claim. [ 18 ] To begin with, I note that it is well established, and has been definitively established for over 20 years, that it is perfectly legal for duly identified police officers to intercept motor vehicle drivers, even in a completely arbitrary manner, to check that the required licences and permits are held, that the vehicles concerned are in proper mechanical condition and that drivers are sober.

This was what the Supreme Court of Canada ruled in 1990 in R. v. Ladouceur . [1] In 1994, in R. v.

Soucisse , [2] the Québec Court of Appeal confirmed that these principles apply to Québec. [ 19 ] To illustrate this, police officers could decide to intercept all vehicles, every fifth vehicle, only red ones or only vehicles made in America; in short, any vehicle so long as the purpose is one of the three mentioned above. [ 20 ] This also means that even without the call from the accused’s spouse, even without his worrisome driving on rue Principale, even without his strange reactions to the police vehicle’s lights and sounds, it was perfectly legal and legitimate for the police officers to intercept Lloyd Harvey to check whether he was sober, in particular. [ 21 ] Once stopped, all of the preceding observations, including the information provided by the accused’s spouse in relation to his ability to drive, could contribute to reasons to arrest the accused.

I will not go back over the facts that appear above, but they seem to me to form an uncommon, perhaps unprecedented, if not exceptional, accumulation of extremely consistent, serious, clear-cut elements testifying to the accused’s greatly impaired ability to operate a motor vehicle. I find it difficult to imagine how one could require more reasons to make an arrest. [ 22 ] Faced with this mountain of elements, Lloyd Harvey is raising an argument that may be unique, or may be twofold, in order to cast doubt on these elements.

He is attacking the credibility of the police officers on the basis of their decision to allow him to drive his vehicle for such a length of time if he was so unable to drive.

He is also arguing that, on the basis of certain small differences in their testimony, between their individual testimony and with respect to their report, how, then, could it have been possible for his ability to drive to be so impaired before the arrest, when he behaved so well after the arrest? [ 23 ] To begin with, we have to remember that the evidence provided by the police officers remains the only evidence that is now before the Court and that, given the burden of the accused Harvey, this is ultimately his evidence. [ 24 ] In the first place, I do not consider that there are any notable, useful or relevant differences between the police officers’ individual reports or between their report and their testimony, or that they contradicted each other within their testimony. [ 25 ] Next, it needs to be repeated that police officers’ notes in general, like their reports, are reminders .

They are not the police officers’ memories . Reports and notes help witnesses, who participate in operations of varying degrees of complexity in the course of every work day, to jog their memories and to testify a number of months, or even several years, after the events. [ 26 ] I think that everyone, whether judge, lawyer, police officer or citizen unversed in legal affairs, has his or her own mechanisms for helping to remember aspects of events that it might be useful to recall later. In this sense, taking notes is fortunately not an end in itself.

It is only a means of keeping memories that are as accurate as possible. If there is a claim that a witness has invented facts simply because he or she did not take notes on a specific topic, then the judge seized with that issue will make a decision, just as with any other question of credibility before the court. [ 27 ] Anyhow, in the case of Lloyd Harvey, I note nothing that raises even the possibility that the notes, reports or testimony of the police officers involved might lead to their testimony being considered suspect.

The police officers were together, but they did not necessarily have the same point of view on all of the events, and their reports contain perfectly normal small differences concerning the facts they observed. [ 28 ] It was also argued that the accused’s conduct after his arrest was incompatible with his behaviour prior to that moment, as

described by the police officers, which would make it possible to cast doubt on their testimony. [ 29 ] Obviously, the behaviour subsequent to the arrest is not relevant to determine whether the police officers had reasons to arrest.

However, if their description of the behaviour changed rapidly, then perhaps it would be possible to claim that the police officers’ version is illogical. [ 30 ] However, the evidence far from supports this claim. [ 31 ] In cross examination emphasis was placed on elements such as the fact that the accused did not hit himself on the door frame at the police station and did not trip over the threshold. It seems that this is true. [ 32 ] However, his behaviour was far from that of a person who was not intoxicated. [ 33 ] For example, after the accused was arrested, he was asked to empty his pockets.

At that point, the accused was on the shoulder of boulevard Pierre-Laporte, and it was around 5:00 p.m. in December. The accused removed his belt and began opening his pants. The police officers had to tell him to stop. [ 34 ] In the patrol car, and during all of the other stages of the intervention, the accused always smelled strongly of alcohol, his eyes looked the same as before, and his movements were always slow. [ 35 ] Five or six times, at more or less regular intervals, the accused asked what was going to happen to his vehicle.

Each time, the police officers explained and re-explained to him that it would be towed. A few minutes later, he asked exactly the same question. [ 36 ] When the tow truck arrived, he asked what it was doing there. [ 37 ] Lastly, if his abilities were so impaired, why did the police officers let the accused drive on rue Principale? [ 38 ] It would certainly be possible to speak for a long time about the difficult balance that is asked of police officers. If an arrest is made too quickly, then it is arbitrary and the fundamental rights of the accused are violated.

If the arrest takes too much time, then the police officers are irresponsible and expose other citizens to the worst kind of life-threatening danger, and their behaviour is so shocking that the accused’s trial should be stopped.

In sum, they are always in the wrong. [ 39 ] In this case, in my opinion, the police officers certainly could have considered that driving so slowly, performing such long, painful mandatory stops, driving with the left-hand tires on the median line (yet not infringing on the opposite lane) was an acceptable risk, especially at the speed involved, that would allow them to gather indications and reasons for arrest.

As soon as the road was larger, on boulevard Pierre-Laporte, they intercepted the accused. [ 40 ] For all of these reasons, including the quantity, even the over-abundance, of the reasons to arrest the accused, no arbitrary arrest or violation of the accused’s rights took place. [ 41 ] In consequence, the motion is DISMISSED . __________________________________ Serge Champoux J.C.Q. Mtre. Élise Côté-Lebrun Counsel for the prosecution Mtre. Alexandre Caissie Counsel for the accused Dates of hearing: October 21, 2016 and February 14, 2017