2011 QCCQ 14970, 2011 QCCQ 14970

Unofficial English Translation R. c. Arnaud 2011 QCCQ 14970 JD 2679 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ROBERVAL “Criminal Division” No.: 155-01-000863-076 DATE: December 2, 2011 ______________________________________________________________________ THE HONOURABLE RICHARD P. DAOUST, J.C.Q., PRESIDING ______________________________________________________________________ THE QUEEN Prosecutrix v. ROBIN ARNAUD Respondent ______________________________________________________________________ JUDGMENT ON VOIR DIRE ON EXCLUSION OF EVIDENCE UNDER ss. 10(

a) AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ______________________________________________________________________ [ 1 ] Robin Arnaud ("Arnaud") is charged with the

summary offences of impaired driving and refusal to comply with a demand. [ 2 ] After the Crown's case was closed, the defence filed a motion to exclude evidence because the police failed to inform the accused promptly of the reasons for his arrest. [ 3 ] Three issues are raised: 1. Has the defence shown, on a balance of probabilities, that Arnaud was not informed of the reasons for being stopped? 2. Has the defence shown, on a balance of probabilities, that Arnaud was not informed promptly of the reasons for his detention or arrest? 3. If there was a violation of this right protected by subsection 10(

a) of the Canadian Charter of Rights and Freedoms (the " Charter "), has it been established that the evidence gathered in violation of this right should be excluded because its use is likely to bring the administration of justice into disrepute?

FACTS [ 4 ] During the night of May 11, 2007, Officers Gagnon and Bluteau noted that the accused was driving his vehicle with its headlights off. [ 5 ] The officers followed the vehicle and, at 3:27 a.m. , pulled it over for a violation of the Highway Safety Code . [ 6 ] According to Officer Bluteau, he informed Arnaud of his violation of the Highway Safety Code at 3:28 a.m ., but ten seconds after his arrival, he had reasonable grounds to believe that the accused was operating a motor vehicle while his faculties were impaired by alcohol. [ 7 ] Officer Bluteau provided the following explanation: [ translation ]

When we arrived next to the driver, Your Honour, I noticed right away that there was something special , you know, excuse my expression, it was like there was a zombie at the wheel , let me explain: he was staring straight ahead, his hands were on the wheel, and I was beside him with my flashlight, but he wasn't looking at me; his mouth was open, and there was spittle in the two (2) corners of his mouth, two (2) mounds, and it was obvious, in the corner of his mouth, on both sides.

He hadn't spoken yet , I hadn't spoken yet, and right away I could smell mint , like crème de menthe or... mouthwash, or a min... anyway, something minty, very strong, it was really strong. Right away I informed him of the reasons for the violation, the reasons for stopping him. ... [1] ...

Listen, I had reasonable grounds to believe that he was impaired about ten (10) seconds after I arrived at his window, and he hadn't even said anything yet: his stare, no contact with me, strong smell, OK, of mint, his... his movements were long, it was slow, it... you know, it ... his... the corners of his mouth had sp.. sp.. spit, some...drool, and well, there was a bit of conduct in there, a little thing, look at me, after that, right away, I saw that he was impaired, but then, I saw, and then, it's...I saw clearly, uh... he... [2] [ 8 ] And later, under cross-examination, the officer stated the following: [ translation ] ...

Q. But now, in your mind, even before speaking, you, for your part, it was settled, that guy is impaired. Why didn't you tell him? A. I was in investigative mode. Q. But in your mind it was clear, you said it earlier: "Ten (10) seconds after I arrived at his window, I had my reasons, that guy, he's not normal, he's drunk". A. Ah, but look, let me explain it to you, it's simple, it's what... a lot of police officers are in a hurry to make an arrest. But I take my time to carry out my investigation properly. ... A.

I could have arrested him beside his car, but I like to take my time in these kinds of situations. ... [3] [ 9 ] At 3:30 a.m ., the police officers ordered the accused three times to exit his vehicle. [ 10 ] At 3:32 a.m ., the accused was informed that he was under arrest for operating a motor vehicle while impaired by alcohol or a drug. [ 11 ] After the arrest, Arnaud entered the police car. The officers explained the reasons for his arrest three times; clearly, he was not collaborating. He was given an order and he did not comply.

The accused said, [ translation ] "I'm not blowing into anything, I'm not going down to the station with you". [4] ANALYSIS [ 12 ] 1. Has the defence shown, on a balance of probabilities, that Arnaud was not informed of the reasons for being stopped ? [ 13 ] In the voir dire , the defence submits that it has shown that it is probable that the grounds for stopping the vehicle under the Highway Safety Code were not revealed to the accused. [ 14 ] Bluteau remembers quite clearly informing the accused at 3:28 a.m., when he arrived, that he was stopping him for driving a vehicle at night with its headlights off.

This information was not included in the police report. Officer Gagnon, who heard most of the conversation while the accused was still in his vehicle, did not hear this portion of it, and this is undoubtedly why it was not recorded in the report.

The report was written by Officer Gagnon and was cosigned by Officer Bluteau, who did not believe it was necessary to add to the report that the reasons for stopping the vehicle had been given at 3:28 a.m. [ 15 ] The defence therefore suggests that the failure to record this information in the report and the fact that these words were not heard by Officer Gagnon make it probable that the reasons for stopping the vehicle were not revealed to the accused. [ 16 ] Officer Bluteau explains that it simply goes without saying that the reasons are given as soon as a vehicle is intercepted, and this is undoubtedly why he failed to notice that the information was not included in the report. [ 17 ] Indeed, under cross-examination he stated a number of times that [ translation ] "it's the foundation of police work" and that it constituted a basic action that was performed in this case. [ 18 ] The evidence before the Court, therefore, is the officer's solemn statement that he remembers having informed the accused of the reasons for stopping the vehicle, a step which, it must be admitted, is indeed an obvious one in any police intervention. [ 19 ] The transcript reveals a number of reported comments by the accused indicating that he did not understand the reasons for his arrest, but a reading is sufficient to conclude that he was simply refusing to collaborate.

[ 20 ] Since the testimony of Officer Bluteau is credible and logical in terms of the police intervention, it is highly likely that the reasons for stopping the vehicle under the Highway Safety Code were provided at 3:28 a.m. on the day of the incident. [ 21 ] 2. Has the defence shown, on a balance of probabilities, that Arnaud was not informed promptly of the reasons for his detention or arrest? [ 22 ] Not every interaction between police and members of the public, even for investigative purposes, constitutes a detention within the meaning of

section 9 of the Charter , [5] even for identification or interrogation. [ 23 ] The police may interact with members of the public until they have specific grounds to connect the individual to the commission of a crime. [6] The police may interrogate any member of the public regarding their suspicions without triggering Charter rights. [ 24 ] As soon as there are reasons to connect the individual with the commission of a crime, there is detention and consequently physical and psychological restraint, in which case the individual here was detained as soon as the police officer arrived at 3:28 a.m. [ 25 ] The stopping of the vehicle targeted a person that the police officer had seen committing a violation of the Highway Safety Code by driving at night with no headlights.

The officer informed the accused of this fact when he stopped the vehicle, but at that very moment he also acquired reasonable grounds to arrest the accused for impaired driving. He did not inform the accused of this fact, however, and continued his investigation, in fact strengthening his evidence, while the accused was informed merely of a violation of the Highway Safety Code and not of a Criminal Code offence. [ 26 ] Officer Bluteau states that, at 3:28 a.m., ten seconds after making visual contact with Arnaud and even before speaking to him, he was convinced that the accused was impaired.

If the accused did not obey his order to hand over his papers, he was not going to let him go. [ 27 ] In fact, the prosecution admits that the accused was detained as of 3:28 a.m. and that he was informed of the reasons of his arrest for impaired driving for the first time at 3:32 a.m., the assessment of the symptoms having lasted for this period. [ 28 ] The consideration in Suberu of the term "without delay" in subsection 10(

b) of the Charter can provide us with some guidance here, although with some caution since the term used in subsection 10(

a) is "promptly". It cannot be denied that the expression " without delay " is more stringent than " promptly ". Here, however, there can be no doubt that since the police officer had acquired his reasons at 3:28, there was nothing preventing him from stating them immediately , which in this case constitutes " promptly ". [ 29 ] The prosecution submits that police officers may detain individuals before informing them of the reasons for arrest for the purpose of securing the scene of a crime. The police officer ordered the accused to exit his vehicle to avoid a bad reaction.

It is true that police officers may act in this way in some circumstances. [7] In this case, however, because the reasons for stopping the vehicle had already been stated, there was nothing to secure. In fact, when the officer testified, he stated that he did not withhold the reasons in order to secure the area but rather to continue his investigation. [8] Of course, under cross-examination, he finally stated that he did not want the accused to flee, [9] but he said this only after he had provided a lengthy explanation of his investigative process.

Moreover, given the physical state of the accused as described, the flight risk was most likely quite low. [ 30 ] In Borden , [10] after the accused was arrested for sexual assault, the police began investigating a second sexual assault for which he had not been arrested without informing the accused. The accused was detained with respect to both offences. The Court decided that he had a right to be informed of this dual investigative intent and that, given the violation of the right in subsection 10 ( a ) – 10(

a) and 10(

b) being connected – when the scope of the investigation was expanded, the accused should have been informed once again of his right to an attorney. [ 31 ] In this case, we should recall that the officer withheld the information that he had reasonable grounds to believe that Arnaud had been driving while impaired at the very moment he was informing him of the ground for stopping him under the Highway Safety Code. [ 32 ] There was therefore a violation of the accused’s Charter right. [ 33 ] 3. If there was a violation of subsection 10(

a) of the Canadian Charter of Rights and Freedoms (the '' Charter "), has it been established that the evidence gathered in violation of this right must be excluded because its use is likely to bring the administration of justice into disrepute ? (

a) The seriousness of the Charter -infringing conduct [ 34 ] Police conduct refers to an entire spectrum of behaviours, from irreproachable conduct to conduct indicating a flagrant disregard for Charter rights, by way of negligent conduct. [11] [ 35 ] It is surprising that, having acquired sufficient reasonable grounds to arrest Arnaud and, at that very moment, informing him of the grounds for stopping him under the Highway Safety Code , the police officer deliberately chose to refrain from informing him of the reasons for arrest under the Criminal Code in order to continue to accumulate evidence because he likes to take his time. [ 36 ] Contrary to what occurred in Harrison , [12] however, although the violation was deliberate, there was also an actual reason for stopping him.

[ 37 ] This violation, which lasted four minutes, was of short duration and, in particular, did not permit the gathering of evidence that would not have been known but for the violation. And, unlike Côté , [13] there was no serious invasion of the accused's privacy. In that case, the police had entered the accused's home in the middle of the night to gather material evidence and statements over a period of several hours. [ 38 ] Here, it has been found that the accused was physically detained against his will for four minutes. It can be concluded that the police officer acted deliberately.

On the spectrum of behaviour, this is located in the middle range, since it is a significant violation that cannot, however, be characterized as shameful, flagrant, or extremely serious. (

b) The impact of the violation on the accused's Charter rights [ 39 ] Evans [14] and Borden [15] define the rights guaranteed in subsections 10 (

a) and 10 (

b) as connected. The right to be informed promptly of the reasons for an arrest entails the right to retain and instruct counsel and to be informed of that right. A violation of the latter right was not raised here.

Even if it had been, the conclusion would have been the same. [ 40 ] That being the case, when police officers inform an accused of the reasons for arrest and of the right to counsel, they must subsequently refrain from eliciting evidence until the accused has been able to exercise this right. [16] [ 41 ] Here, because the accused was already detained for violating the Highway Safety Code , because there was no search, and because he was in an automobile and there was no entrance into a residence, the invasion was mild and the violation had little effect on the accused's liberty and privacy rights. [ 42 ] Moreover, no information or statement was elicited from the accused other than identification and the usual papers required during an intervention under the Highway Safety Code .

Only the symptoms were observed. Of course, the prosecution tried to introduce them as evidence. These symptoms are evidence gathered after the violation of the right to be informed of the reasons for Arnaud's arrest. [ 43 ] Despite the violation, however, I do not believe that the evidence was obtained under conditions that infringe the right to be informed of the reasons for arrest. The evidence does not consist of statements elicited from an individual who makes statements or commits actions because he is unaware of the reasons for his arrest.

Nor is it constituted by blood tests, items handed over, or instances of self-incrimination. The disclosure of the grounds for arrest at 3:28 a.m. instead of 3:32 a.m. would not have had any significant effect on the symptoms noted, as Dalphond J.A. states in Dault , [17] through visual and olfactory observation. These symptoms include red eyes, slow movements, looking like a zombie, and so on. They are physical conditions that would have been the same or substantially the same despite an announcement by the police officer that he was placing Arnaud under arrest for impaired driving.

For example, if he had been arrested at 3:28, he could not have demanded that they cease looking at him or disappeared to hide his symptoms. [ 44 ] In Grant , [18] the officers discovered the weapon following statements by the accused that were alleged to have been elicited in violation of a Charter right.

That case is very different from the one before us, where nothing was elicited and no self-incrimination took place that would not have happened but for the violation. [ 45 ] First, an accused who is aware of his intoxicated state exhibits a reaction in front of a police officer who has stopped him for violating the Highway Safety Code . Obviously, the accused tries to be on his best behaviour. Second, he could not have controlled most of the symptoms observed even had he wanted to.

Whether or not he knew the reasons for his arrest would not have changed the colour of his eyes, the fact that he looked like a zombie, his slow movements, and so on. Thus, no evidence was gathered in conditions that violated the right under

section 10(

a) of the Charter . [ 46 ] What is more, even if this evidence had been gathered under conditions that violated the accused's right to be informed promptly of the reasons for his arrest – which I do not believe to be the case – it was in any event available after the arrest at 3:32 a.m., as the symptoms observed remained the same until the end of the police operation. [ 47 ] Moreover, count 2 (refusing to comply with a demand) was brought in light of facts that occurred after Arnaud's arrest for impaired driving.

Here, the violation also has no impact. [ 48 ] There is therefore no reason to exclude the evidence gathered after the violation, since the exclusion of the evidence gathered between 3:28 a.m. and 3:32 a.m. would make no change to the record and the exclusion of the evidence gathered after 3:28, as the defence seeks, would be entirely unjustified. Therefore, the violation had no effect on the accused's Charter rights. (

c) The interests of society in an adjudication on the merits [ 49 ] The third issue concerns the interests of society in an adjudication on the merits. It must be determined whether the truth- seeking function of criminal procedure is better served by the use of the evidence than by its exclusion. The reliability of the evidence and its importance to the prosecution are the key considerations. [ 50 ] Here, there is no doubt that the evidence gathered is reliable and is not the cause of any injustice, given the truth-seeking function of the trial.

The public has a heightened interest in seeing such matters adjudicated on the merits as well as an interest in the irreproachability of the justice system. An analysis of this factor favours the admission of the evidence. (

d) The balancing of the factors [ 51 ] After a consideration of these issues, the court must weigh these factors against each other when ruling on an action based on subsection 24(2). No overarching rule governs how the balance is to be struck. [19] On the contrary: "The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute". [20] No one consideration systematically prevails over another.

[52] As the Chief Justice notes in Harrison, the need for a system of justice to dissociate itself from police misconduct does notalways trump the truth-seeking interests of the criminal justice system.[21] [53] In the case before us, even though, due to its deliberateness, the violation has a degree seriousness that I would characterize asmoderate, it has such little impact on the rights of the accused that in fact the exclusion of the reliable evidence would undermine theconfidence of the public in the administration of justice in a case where the offence contributes to the scourge of drunk driving. [54] FOR THESE REASONS, THE COURT: [55] DISMISSES the motion for exclusion of the evidence obtained after 3:28 a.m. __________________________________ RICHARD P.

DAOUST, J.C.Q. Mtre Jennifer Landry and Mtre Amélie SavardFor the prosecution Mtre Denis OtisFor Robin Arnaud Dates of hearing: November 8, 2010 and October 12, 2011. [11] R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.)