R. v. Caswell, 2014 ONCJ 462

ONTARIO COURT OF JUSTICE CITATION: R. v. Caswell , 2014 ONCJ 462 DATE: 2014·09·10 COURT FILE No.: Regional Municipality of Durham 998 13 15281 BETWEEN: HER MAJESTY THE QUEEN — AND — Dale Caswell Before Justice J. De Filippis Heard on 9 April & 9 July 2014 Reasons for Judgment released on 10 September 2014 Mr. M. Hill ................................................................................................. counsel for the Crown Mr. C.

Da Cruz ................................................................................... counsel for the Defendant De Filippis J.: [ 1 ] The defendant was tried on an Information alleging that he was in care or control of a motor vehicle while impaired and at a time that his blood alcohol level was over 80mgs of alcohol per 100 millilitres of blood, contrary to

section 253 of the Criminal Code . The defendant brought a motion to exclude the evidence needed by the Crown to prove the charge or, in the alternative, for such other remedy as may be available. This motion is grounded is sections 8, 9, and 24 of the Charter of Rights and Freedoms. The trial proceeded by way of a blended hearing. I heard from the arresting officer, the defendant, and a tow truck driver. [ 2 ]

Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure". This right means that the police must have reasonable and probable grounds to arrest and/or search a person.

Section 9 states that “Everyone has the right not to be arbitrarily detained or imprisoned. The enforcement of Charter rights is governed by

section 24 :

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 3 ] The verdict in this matter is driven by the Charter motion; that is, in the circumstances of this case, the breath test results are conclusive proof of the offence.

There are three issues: Did the seizure of the breath samples violate the defendant’s Charter rights, as set out in sections 8 and 9 ; If so, should that evidence be excluded, pursuant to subsection 24(2); If not, should another remedy be granted, pursuant to subsection 24(1)? Having regard to my conclusion with respect to the

section 8 and subsection 24(2), it is unnecessary to consider the other arguments advanced by the defendant. [ 4 ] Street names and stop signs are important to this case. Atho l Street, in Whitby, runs north and south. As it does so, from the north, it intersects with Burns Street, St. Lawrence Street and then turns onto Clemence Avenue. There are stop signs at the Burns and St. Lawrence intersections. There is no stop sign at Clemence. [ 5 ] PC Jeffs was on duty as a uniformed officer in the Regional RIDE program on 13 December 2013.

At 2 AM he was in the Town of Whitby and observed a Honda motor vehicle southbound on Athol Street, approaching Burns Street. The officer testified that this intersection is in a residential area and controlled by a clearly marked four way stop sign configuration. He followed the vehicle until it

approached another stop sign at the intersection of Athol Street and Clemence Avenue. PC Jeffs said the vehicle made a right turn,without coming to a complete stop, continuing westbound on Clemence Avenue. He decided to pull the vehicle over because of this“rolling stop” and he did so at 2:02 AM on Clemence av enue, immediately east of Brock Street. [6] PC Jeffs approached the driver’s side of the vehicle and observed that the defendant was the driver with a female passenger in thefront seat. He detected an odour of alcohol emanating from within the car. The officer told the defendant the reason for the stop.

During additional conversation, the officer detected the odour of alcohol from the defendant’s breath. The latter admitted to havingrecently consumed “two beers – two Coors Light – draughts – at the Royal”. Having regard to the observations and conversation, PCJeffs demanded that the defendant provide a sample of his breath into an approved screening device. The latter had been previouslytested and found to be in good working order. [7] PC Jeffs explained the test procedure. After several unsuccessful attempts, the defendant provided a proper sample.

This wasanalyzed and determined to be a “fail”; that is, a blood alcohol concentration in excess of 100 milligrams of alcohol in 100 millilitres ofblood. As a result, the defendant was arrested for the charge before the court. He was informed of his right to counsel, subjected to abreath demand, and transported to the nearest police station for those additional tests to be conducted. On arrival at the station, thedefendant was paraded and given the opportunity to speak to duty counsel. [8] At 3:10 AM, PC Jeffs brought the defendant to PC Adams, the intoxilyzer technician.

The latter used an approved instrument toseize two samples of the defendant’s breath. There is no dispute that this was conducted properly. The results were analyzed anddetermined to be 210 and 200 100 milligrams of alcohol in 100 millilitres of blood. This is more than twice the legal limit. [9] P.C. Jeffs’ notes, made contemporaneously with the events in question, record his observation that the defendant disobeyed a stopsign at Athol and Clemence. This is consistent with his trial testimony in chief.

In cross-examination, he was provided with a map of thearea that shows there is no stop sign at this point along the road and that Athol becomes Clarence as it veers to the right. The officerseemed puzzled by this and said he made a mistake and that the defendant failed to obey the stop sign along Athol, at both Burns and St.Lawrence. These observations are not recorded in his notes. In later questioning, the officer also insisted that the defendant had hiswallet with him later at the police station. [10] The defendant denied disobeying any stop sign.

He testified he was not given an explanation for being pulled over. Heacknowledged telling the officer he had consumed alcohol during an evening in which he had hosted a dinner for his employees,followed by drinks at a “strip club”. After arrest, he was transported to the police station and arrived there without his wallet, as he hadleft this in his (impounded) vehicle. [11] David Omerod operates a tow truck with Duft’s Towing Inc.

He testified that on the day in question he was dispatched to pick up amotor vehicle that had been stopped by police at the intersection of Brock and Clemence Streets in the Town of Whitby. He identifiedthe tow truck invoice he prepared at the time for the car seized at this location. The invoice also records that a wallet was found in thevehicle and taken with the car to the pound. [12] The Defence argues that PC Jeffs had no authority to detain the defendant and subject him to a breath demand.

Moreover, it isasserted that in the circumstances of this case, the subsequent breath test results should not be admitted into evidence. There is nodispute that the breath demand that yielded these results from the approved instrument was justified by the defendant’s “fail” reading onthe approved screening device. The Crown submits that once the defendant’s motor vehicle was stopped, PC Jeffs had ample grounds tomake an approved screening device demand at the roadside.

I agree; that demand was validated by the officer’s observation that thedefendant operated the motor vehicle and had the odour of alcohol on his breath, as well as latter’s admission he had consumed alcohol. However, I do not accept the Crown’s additional submission that this fact is fatal to the defendant’s Charter challenge. The police musthave lawful cause to detain a person. The sources of such authority can be found in statute or pursuant to common law powers vested inthe police.

The ground for doing so in this case is that the defendant violated the Highway Traffic Act by disobeying a stop sign on twooccasions. That is a legitimate basis for the officer to stop and detain. However, the evidence in this case does not support the statedreason for this action. [13] PC Jeffs testified in chief that he followed the defendant’s motor vehicle southbound on Athol, past the clearly marked four waystop intersection at Burns, and observed the car make a “rolling stop” at the intersection of Athol and Clemence. This cannot be as thereis no stop sign here.

When this was made clear, the officer testified he must have made a mistake and that the failure to stop occurred atthe previous intersection, at Athol and St. Lawrence. He added that before arriving at Clemence, the defendant failed to stop at bothintersections on Athol, namely, at Burns and St. Lawrence. The omission of these observations in the notes he made at the time issignificant because the Highway Traffic Act offence in question is the only reason the officer investigated the defendant.

Moreover, oneis left to wonder why the defendant was not pulled over after he disobeyed the first stop sign, let alone the second one. Instead, on thetestimony of the officer and the tow truck driver, this did not occur until after the defendant had continued along Athol and Clemence,just east of Brock Road. [14] The defendant testified that he stopped, as required, at all intersections. In any event, the fact remains that the evidence of theofficer about where the defendant disobeyed a stop sign is so muddled that it cannot be relied upon.

This confusion is cemented by adetail that might not otherwise trouble me – the matter of the wallet. PC Jeffs testified the defendant had one with him at the policestation. The defendant said he left it in the car. The tow truck driver testified, and recorded at the time, that he found one in the motorvehicle. It is unlikely that this wallet belonged to the female passenger; what is more likely is that the officer has it wrong. [15] A reasonable and probable ground to arrest and/or search has both a subjective and an objective component.

The subjectivecomponent requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer'sopinion must be supported by objective facts: Storrey v. The Queen (1990) (SCC), 53 C.C.C. (3d) 316 (S.C.C.).Judicial scrutiny of this standard must recognize the context within which the police officer's obligation operates. It must not be inflatedto the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni [2001] O.J. No. 5189(S.C.J.).

In other words, there must be enough to justify police interference with individual liberty, but this does not mean a prima faciecase or proof beyond a reasonable doubt.

[16] In this case, the officer’s subjective belief that an offence was committed is based on an unclear and inconsistent account of theevents. Moreover, the shifting explanation he provided cannot be said to be objectively reasonable. Accordingly, the defendant has alsoestablished that his detention was arbitrary. I find that his

section 8 and 9 Charter rights were infringed. [17] In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice intodisrepute, the following factors must be considered:

(1) The seriousness of the Charter-infringing state conduct;

(2) The impact of thebreach on the Charter-protected interests of the accused; and

(3) Society's interest in the adjudication of the case on its merits. The firststage of the inquiry reflects the concern that respect for the Charter may be undermined if courts, by admitting evidence, appear tocondone deliberate and egregious police conduct. The second stage focuses on the impact of the breach on the protected interests of thedefendant; the greater the intrusion on important interests, the more likely it is that tainted evidence will be excluded. In this regard thespectrum includes intrusions that are fleeting or technical to those that profoundly affect bodily integrity and human dignity.

The thirdinquiry considers the value of a trial on the merits. In this regard, the reliability of the evidence is important. R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, para 71and R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, para 36. [18] The third criteria outlined above supports the rejection of the Defence motion; the impugned evidence – breath test results – arehighly reliable and exclusion is fatal to the Crown’s case. On the other hand, the defendant was detained and searched for noascertainable reason. Accordingly, the first and second considerations favour exclusion of the evidence.

The application of section 24(2)of the Charter is always a question of balance. In my opinion, the scale tips in favour of exclusion. To do otherwise in thecircumstances of this case would bring the administration of justice into disrepute. [19] The Charter motion succeeds. The evidence is excluded. The charge is dismissed. Released: September 10, 2014 Signed: “Justice De Filippis”