R. v. Dupont, 2015 ONCJ 757

CITATION: R. v. Dupont , 2015 ONCJ 757 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DANIEL DUPONT Before Justice D.M. Lahaie Released on October 30 th , 2015 Mr. M. Geigen-Miller............................................................................................ for the Crown Mr. M.

Ertel............................................................................... for the accused, Daniel Dupont LAHAIE, J.: Daniel Dupont is charged with one count of operation of a motor vehicle while his ability to operate said vehicle was impaired by alcohol and one count of operating a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mgs of alcohol in 100 mls of blood contrary to s. 253(1) (

a) and (

b) of the Criminal Code of Canada . The trial of this matter proceeded as a blended voir-dire. There were a number of issues raised in this case. Defence counsel filed a Charter application arguing that his client’s rights as guaranteed by sections 7, 8, 9 and 10 of the Charter were violated. He argues that all statements made by the accused to persons in authority and the breath test results should be excluded pursuant to s. 24(2) of the Charter.

Without the accused’s statements to police, defence counsel argues, the required elements of both of these offences have not been established beyond a reasonable doubt, as the identity of the driver is only discovered once the accused is detained and his rights are violated. I will begin by outlining the evidence. Each of the issues raised by counsel will be explored. Finally, I will provide the Court’s findings. The evidence The Court heard the evidence of Cst. Martel, Cst. Carvalho and Cst. Gagnon. The written joint statement of Lisa Courville and Marc Courville was admitted into evidence on consent.

The accused did not testify. The facts as I find them are as follows: On August 23, 2014 at approximately 8:45 p.m., Lisa and Marc Courville were returning home, having left a house on Horseshoe Crescent in Stittsville. Upon turning south on Stittsville Main Street, they came upon a blue Ford truck and noticed that the driver of that vehicle was driving erratically. Believing that the driver was impaired, they called the Ottawa police. They followed the vehicle and observed a strange driving pattern.

They advised the police of the direction of travel, vehicle description, license plate and a description of the driver whom they described as an older male, with grey to white hair who seemed to be in his 50s to 60s. As the driver turned right onto Horseshoe Crescent, the Courvilles stopped following the vehicle as the police, at that point, had all of their information. Cst. Martel was dispatched to a possible impaired driving incident very shortly after the Courvilles telephoned police. She was provided

with the license plate number of the vehicle and the vehicle’s description. She queried the license plate number and learned that the vehicle was registered to Daniel Dupont, whose date of birth was July 12, 1962. The information provided to Cst. Martel included that the driver of the vehicle was the lone occupant and that he had grey hair. Cst. Martel testified that she was advised that the driver was approximately 50 years of age. The vehicle’s general location was also provided. When Cst.

Martel turned onto Horseshoe Crescent, described as a densely populated area with row housing, she noticed the target vehicle, which was parked on the east side of Horseshoe Crescent facing north. Cst. Martel noted that the truck was unoccupied but that the dome light was still on. Cst. Martel noticed two men speaking with two women in front of 338 Horseshoe Crescent, on the west side of the Crescent, three townhomes away from the truck. The two women sat on lawn chairs on their porch, and the two men were standing near the women. Cst. Martel approached the group and spoke with them.

She testified that one of the men, Kevin Mason, a man in his 30s or 40s, according to the officer, did most of the talking and was not cooperative. During the conversation, both men denied being the driver of the target vehicle. Cst. Martel took identification documents from Mr. Mason and continued to interact with him. Detective Carvalho arrived as Cst. Martel spoke with the group. Although Cst.

Carvalho gave varying versions of what he said to the group, he testified that he said something to the effect that they were investigating an impaired driving complaint and would leave as soon as they determined that they were not involved. Cst. Carvalho could not recall what was said by the individuals to whom the officers spoke but recalled that he asked for Mr. Dupont’s driver’s license. In examination in chief, Cst. Carvalho testified that he observed the accused swaying as he pulled out his driver’s license and that,as he got closer, he could smell alcohol.

He did not recall the precise words spoken to the accused as he directed him to his cruiser, but believed that he told the accused that he was being detained for an impaired driving investigation. According to this officer, he wanted to see if the accused was impaired and was going to get his ASD. Cst. Carvalho testified that he asked the accused when he had had his last drink as they walked to the cruiser and the accused admitted to consumption at 5:00 p.m. that day, providing details as to where he had driven. Cst. Carvalho described the accused as being unsteady on his feet.

He testified that he concluded that Mr. Dupont was the driver and that he was impaired. Consequently, he would administer the ASD. Cst. Carvalho was unsure whether Cst. Martel accompanied him to the cruiser. Cst. Carvalho explained that he placed the accused in handcuffs for officer safety reasons and conducted a pat down search. He testified that he located a set of car keys and house keys which included the key to the target vehicle. Cst. Carvalho also testified that he overheard the accused say to Cst.

Martel, as she administered the ASD, that he had had a drink about an hour prior and that he drank liquor and not beer. In cross-examination, Cst. Carvalho stated that once he saw the accused’s identification, Mr. Dupont was not free to leave as he knew the name of the registered owner, having conducted a query on the computer. He conceded that he could not recall whether it was his idea or Cst. Martel’s idea to administer the ASD. Cst. Carvalho stated that he was satisfied that he had grounds to administer the ASD, as Mr. Dupont showed signs of impairment and had admitted he was the driver.

He did not recall whether the admission occurred before or after the accused was handcuffed. Cst. Carvalho conceded in cross- examination that the demand was not made until Mr. Dupont admitted that he was the driver. Cst. Carvalho testified that he told the accused that he was being detained and then directed him to the cruiser. He also testified that it was when they were at the cruiser that he told Mr.

Dupont that he was being detained for an impaired driving investigation and for officer safety reasons and that this was the point when he placed handcuffs on the accused and conducted a pat down search, finding the keys. When the perceived inconsistency was put to the officer, Cst. Carvalho testified that he told the accused that he was being detained on two occasions. Cst. Carvalho also conceded that he just needed the admission of driving as he had smelled alcohol .

Cst. Carvalho later conceded that he was not sure whether the reason for detention was provided to the accused when he was first detained. According to Cst. Carvalho, the admission that the accused was the driver was made as they walked to the cruiser, following the first “detention”. This detail was not included in the officer’s notes or his investigative action report. Cst. Carvalho stated on the first day of trial that he could not recall having reviewed Cst. Martel’s investigative action report prior to preparing his own.

This issue was canvassed as his investigative action report, prepared four days after the date of offence, contained a more detailed account of the incident, including more of the statements allegedly made by the accused which were not included in his notebook. The order of events was also different in the officer’s notebook when compared to his less contemporaneous investigative action report. On the first day of trial, Cst.

Carvalho explained that he recalled the accused’s statements in greater detail four days later and that he also realized that he did not have the events recorded in the proper order in his notes, explaining the different version recorded in the IA report. The case was adjourned to continue months later. On the subsequent trial date, the court was advised that Officer Carvalho had consulted Cst. Martel’s investigative action report and had then submitted his own two hours later, again, four days after the date of this incident. Cst. Carvalho conceded in cross-examination that he had accessed Cst.

Martel’s investigative action report one minute prior to drafting his own report, as the Ottawa Police computer revealed this to be the case. He did not however recall having looked at her report. When the statements made by the accused, as recorded in Cst. Martel’s investigative action report, were put to Cst. Carvalho, he agreed that the statements admitting to driving were consistent with what was recorded in his report, but he could not recall whether the statements were made by the accused after he was handcuffed. Cst.

Carvalho did not record the questions asked of the accused or any verbatim account of the words spoken by Mr. Dupont. Cst. Carvalho did not recall whether the accused was ever in his cruiser or whether the accused was ever in Cst. Martel’s cruiser before he provided a breath sample into the approved screening device. He conceded that his notes did not contain the statement allegedly made by the accused that he had liquor and not beer and conceded that he was not sure whether his memory had been refreshed when he consulted Cst. Martel’s investigative action report. Cst.

Carvalho further testified that he cautioned Mr. Dupont “more or less” on the second detention which was the point when the accused was handcuffed, but that he did not do so with the assistance of his notebook. Cst. Carvalho explained that he would have said something like “you are being cautioned in regards to anything that you say”. I find that Officer’s Carvalho’s evidence was not the product of his own recollection but rather, that he inserted the details captured by Cst. Martel in her investigative action report.

I reject the suggestion that he recalled four days after this event the specific statements of the accused which were not captured in his notes and that he himself recalled that he had captured the events in the wrong order in his notebook. I do not accept Cst. Carvalho’s evidence that he knew the identity of the registered owner of the vehicle and realized that it was the accused when Mr. Dupont produced his driver’s license. Rather, I find that Cst. Carvalho came upon the scene and saw that his colleague was engaged in conversation with Mr. Mason, who was being difficult.

He decided to take custody of the only other male in the group and bring him to his cruiser in the hopes that one of the two officers would discover, through questioning, which of the two men had operated the motor vehicle. Mr. Dupont was told by a uniformed officer to accompany him to his cruiser. He was detained at that point. He was then physically detained in a more intrusive fashion, at the cruiser, when handcuffs were placed on him and he was searched, at which point his vehicle keys were located. Cst. Carvalho did not provide Mr.

Dupont with his rights to counsel or a proper caution prior to embarking on an investigation to determine whether Mr. Dupont was the driver of the vehicle. Furthermore, I find that when first detained and directed to the cruiser, Mr. Dupont was not advised of the reason for his detention. I find that the accused admitted to being the driver after he was handcuffed and searched.

I find that Cst. Martel joined Cst. Carvalho at his cruiser and that she questioned the accused after being advised by Cst. Carvalho that Mr. Dupont was the driver. Cst. Martel testified that she arrived on scene at 8:51 p.m. She was engaged in conversation with the four individuals very shortly thereafter. I find that when she made the breath demand of Mr. Dupont at 8:59 p.m., he was handcuffed and the inculpatory statement in regards to his driving had been obtained. There was inconsistent evidence as to the timing of when handcuffs were placed on Mr. Dupont. However, both officers agreed that Mr.

Dupont was handcuffed prior to arrest and prior to providing a sample of his breath into the ASD. Once the accused provided a sample which yielded a “fail” result, the officers removed Cst. Carvalho’s handcuffs and placed Cst. Martel’s handcuffs on him. Furthermore, I note that there was no specific officer safety reason provided for the initial decision to place handcuffs on the accused. I reject Cst. Martel’s evidence that the accused admitted that he had been driving and that he had had his last drink at 5:00 p.m., before he was placed in handcuffs by Cst. Carvalho. Her evidence on this point was inconsistent.

Cst. Martel was not prepared to concede that the accused was detained when Cst. Carvalho directed Mr. Dupont to the cruiser. She did not recall whose cruiser the accused sat in while handcuffed and directed to provide a breath sample. Her evidence in regards to the time spent with Mr. Mason and Mr. Dupont was also inconsistent, as she first testified that she joined Cst. Carvalho within seconds and later stated that she was concentrating on Mr. Mason and taking down his information from his identification documents as Cst. Carvalho dealt with the accused. Mr.

Dupont was arrested and transported to the police station. He spoke with counsel. The accused provided two sample of his breath at 10:32 p.m. and at 10:56 p.m. which yielded truncated readings of 180 and 170 mgs of alcohol in 100 mls of blood respectively. During the time spent with Cst. Gagnon, the qualified technician, the accused admitted to driving and provided further inculpatory statements. The issues, the Law and the Court’s conclusions Defence counsel argues that the accused was detained by Cst. Carvalho when this uniformed officer directed him to his cruiser.

He maintains that the accused was not advised of the reason for his detention at that point and that he was not provided with his rights to counsel, in violation of s. 10(

a) and (

b) of the Charter. As the evidence in regards to the identity of the driver of the vehicle was obtained following the breaches, it is argued that all of the evidence which flows should be excluded pursuant to s. 24(2) of the Charter. Crown counsel argues that the officers were entitled to question the accused and relies on s. 48 of the Highway Traffic Act , which provides the police with the authority to require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under

section 254 of the Criminal Code . In the present case, the primary issue is whether the officers were authorized to question the accused under the authority of this provision in order to determine whether he was the driver. In the circumstances of this case, I find that the actions of Cst. Carvalho exceeded the authority granted by s. 48 of the HTA. Furthermore, I find that Cst. Carvalho never turned his mind to this provision when he detained Mr. Dupont, handcuffed him, questioned him, searched him, located his keys and was then able to pass along the information to Cst. Martel that the accused was the driver.

Cst. Martel had sufficient grounds to make the ASD demand, only after she obtained the inculpatory statements of the accused, which included his identification as the driver of the vehicle, obtained in breach of Mr. Dupont’s

section 9, 10(

a) and 10(

b) rights. This was a densely populated area with row housing. The information received was that the operator of the subject vehicle was in the vicinity and that there was a single occupant of the vehicle. The very general description that the man was in his 50s to 60s with grey hair was a very limited description. The group of four individuals, including two men and two women, who were standing on the opposite side of the street, three townhomes down from the parked car, could have been witnesses, but there was very limited information to support a suspicion that they were involved. When Cst.

Martel spoke with the men, they denied that either had driven the vehicle. They continued to be questioned. There is no description of Mr. Mason, other than he was in his 30s or 40s and appeared younger than Mr. Dupont who was in his early 50s.

If Cst. Martel had been swayed by Mr. Dupont’s grey hair, she would have concentrated on him immediately. Mr. Dupont was described as quiet. He denied that he had been driving. It is only because Cst. Martel had her hands full with Mr. Mason, that Cst. Carvalho detained Mr. Dupont and led him away from the group. This could very well have been a group of innocent bystanders who stood a significant distance away from the car, in a group of four, on the opposite side of the street. From there, Mr. Dupont was led to the cruiser, without being advised of the specific nature of the investigation.

He was handcuffed, searched and questioned without being advised of his rights to counsel or properly cautioned. I have thoroughly reviewed the cases provided to me by both counsel. Although it is not an impaired driving case, I am persuaded by the reasoning of the Court of Appeal in the matter of R. v. Wong ,

(2015) ONCA 657. I find that the accused was arbitrarily detained contrary to

section 9. I find that Cst. Carvalho did not advise Mr. Dupont of the reason for his detention and that he did not properly caution him or advise him of his rights to counsel in contravention of the accused’s s. 10(

a) and s. 10(

b) rights. In my view, the evidence obtained in contravention of these rights may not be used to substantiate the demand made by Cst. Martel. A reasonable person in the accused’s situation would conclude that the accused had no choice but to cooperate with the police ( R. v. Suberu (2009), SCC 33, at paragraph 22). “The focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops” ( R. v. Grant (2009), SCC 32 at paragraph 31) .

When I examine the circumstances giving rise to this encounter, the nature of the police conduct and the characteristics and circumstances of the accused, I conclude that the accused was detained from the moment that Cst. Carvalho directed him to his cruiser. In my view, Cst. Carvalho was simply directing “the other male” away from the scene in order to question him.

Section 10(

b) of the Charter requires a police officer to inform a detained person of his right to counsel “without delay”, which has been determined to be immediately ( R. v. Suberu,supra) . There is a suspension of that right in drinking and driving cases where the officer has reasonable grounds to suspect that the accused is the driver of a motor vehicle and that he has alcohol in his system. This was not the case here. I find that Cst. Carvalho had an obligation to advise the accused of the reason for his detention, of his right to remain silent and of his right to speak with a lawyer. By failing to inform Mr.

Dupont of his rights, Cst. Carvalho prevented Mr. Dupont from making an informed decision to speak with the officers. In carrying out the Grant analysis under s. 24(2), I am of the view that all of the statements made by the accused following these multiple breaches must be excluded. The Charter-infringing conduct in the present matter was serious. Cst. Carvalho did not appreciate the significance of his encounter with Mr. Dupont and he did not turn his mind to the accused’s rights. Cst.

Carvalho believed that he had cautioned the accused and yet the words he believed that he may have uttered did not constitute an appropriate caution. I find that Cst. Carvalho did not understand his obligations in regards to the accused’s rights. Similar to the situation in R. v. Wong, supra , the officer was determined to “get to the bottom of the evidence”, in the present case, of who had driven this vehicle. This was not a brief interlude. There is an eight minute lapse of time between Cst.

Martel’s arrival on scene, her questioning of the group of four, their denial that they had driven the motor vehicle, Cst. Carvalho’s arrival, the handcuffing of the accused, the searching of the accused and the officer’s demand. Mr. Dupont was not cautioned or given his rights to counsel in these circumstances, where the police had insufficient grounds to suspect that he had driven the motor vehicle. This factor favours exclusion. The breach in this case had a serious impact on the accused’s right against self-incrimination. The evidence was not otherwise discoverable. This factor also favours exclusion.

Society’s interest in an adjudication on the merits, while usually favouring admission of evidence, must also be examined with a view of the long-term repute of the administration of justice.

The police conduct in this case was unacceptable. In my view, the admission of the evidence at the scene and all that followed would devalue Charter standards and constitute an unacceptable approach to “the protection of Charter values” ( R. v. Wong, supra) Balancing the Grant factors, I find that, in this case, the administration of justice would be brought into disrepute by the admission of the evidence. The evidence is therefore, excluded. I have turned my mind to the issue of whether the accused’s statements to Cst.

Gagnon should be excluded given the fact that they were made following the accused’s discussion with counsel. In my view, having been detained for hours, deprived of his liberty and subjected intrusive and illegal searches at that point, the evidence elicited from him at the police station must also be excluded following the same reasoning. Without the evidence of the statements made by the accused, the prosecution fails on both counts on the issue of identity. An acquittal will be entered on both counts. Released: October 30 th , 2015 The Honourable Justice D.M. Lahaie