r v. GEOFFREY SHERRER, 2016 QCCQ 9819

R. c. Sherrer 2016 QCCQ 9819 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE Criminal and Penal Division No. 455-01-013341-148 DATE: August 30, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

GEOFFREY SHERRER Accused ______________________________________________________________________ JUDGMENT ON THE ACCUSED’S MOTION TO EXCLUDE EVIDENCE ______________________________________________________________________ [ 1 ] Geoffrey Sherrer is charged with driving a motor vehicle in Dunham on December 8, 2013 while impaired by alcohol and, on that same date, driving with a blood alcohol level over the legal limit. [ 2 ] The trial opened with the holding of a voir dire in constitutional matters to decide on his motion alleging that some of his rights guaranteed by the Canadian Charter of Rights and Freedoms (the “Charter”) were violated. [ 3 ] The present decision rules solely on that motion. [ 4 ] Although the title of the motion invokes sections 7 , 8 , 9 and 10 (

b) of the Charter , the allegations themselves are more limited. The first allegation refers to the arbitrariness of the accused’s interception, the second pertains to the unreasonable wait time for the tow truck that came for the accused’s vehicle and the third regards an alleged failure by the police officers, such that Sherrer [TRANSLATION] “was not authorized to seek counsel in accordance with

article 10 (

b) of the Charter” . THE FACTS [ 5 ] I wish to point out, if need be, that the accused has the burden of proving his allegations. [ 6 ] The relevant factual background varies slightly according to which version is considered, but in my opinion, not in such a way as to affect the findings that should be reached. [ 7 ] The events took place in the night of Saturday, December 7 to Sunday, December 8, 2013 in the RCM of Brome-Missisquoi. With the exception of the territory of Ville de Bromont, this RCM is entirely policed by the Sûreté du Québec.

I take the liberty of noting that, while it was not formally demonstrated (but in keeping with the leading line of jurisprudence, judges are familiar with the jurisdiction where they are sitting, see, in particular, R. v. Lacasse , [1] R. v.

Spence , [2] etc.), this is a vast RCM with certain urban cores and large rural areas. [ 8 ] Thus, during the night in question, four Sûreté du Québec vehicles were patrolling this territory and deployed as follows: one vehicle was covering the Cowansville–Brigham–East-Farnham sector, another was assigned to Farnham–Bedford–Saint-Ignace-de- Stanbridge, one was covering Ville de Lac-Brome and Sutton, and another was assigned to Dunham–Saint-Armand–Frelighsburg.

Obviously, this list of towns and villages is not complete and should also include many other small communities as well as vast rural areas; however, for those familiar with the region, it provides a fairly good idea of the divisions in question. [ 9 ] Around 3:15 a.m., a call came in at the call management station concerning an alarm that had been triggered at a property on chemin Robinson in Dunham.

This is a relatively isolated area located between Lac Selby and Sutton, not far from Mont Pinacle. [ 10 ] The night in question, Officers Sylvain and Sullivan were partners and had been assigned to the Cowansville sector. The call was transferred to them because the vehicle assigned to the Dunham region (the territory where the chemin Robinson address is located)

was busy responding to a call involving arson. [ 11 ] The police officers stated that, in their experience, the vast majority of such calls are false alarms, but that there is still a need for follow-up, although these calls are not given top priority. [ 12 ] They therefore headed in that direction without being thoroughly familiar with all of the highways and country roads in question. As they neared the location, one of the police officers used a personal GPS for guidance.

At that time, they were travelling on unlit gravel roads where houses are few and far between. [ 13 ] The versions of the accused Sherrer and the police officers differ somewhat with respect to the exact roads they travelled on and where they saw the other’s vehicle for the first time, but I do not see this as being of a nature to truly change the decision to be rendered.

In practice, it appears that the tailing and interception took place on chemin Dymond and chemin Hudon. [ 14 ] The question is more or less important since it must be acknowledged, first, that the police officers were far from familiar with the sector and, second, that one of the roads, chemin Dymond (according to Exhibit VD-1), keeps its name at one point despite a change in direction that resembles an intersection. Moreover, Geoffrey Sherrer does not deny being the person who was arrested during the night in question and in this respect, there is no possible error.

Furthermore, it should be added that Geoffrey Sherrer, who lives in the area, certainly had much better knowledge of the network of country roads in question than the police officers. [ 15 ] Be that as it may, it is clear that upon approaching the immediate chemin Robinson area, the two police officers saw a vehicle coming from what appeared to be the direction where the alarm had been triggered.

There was no other traffic in the vicinity at that hour of the night. [ 16 ] Of course, time had elapsed since the alarm was triggered and it was not at all certain that the vehicle had come from the exact location where the alarm had gone off. The police officers also testified that they thought it could be a driver who was trying to avoid driver sobriety roadblocks, some people opting to take the [TRANSLATION] “country roads”. Lastly, it was possible that it was a citizen who had done nothing wrong. [ 17 ] With these three possibilities in mind, they followed the vehicle.

It was travelling 50 km/h in a 70 km/h zone. The vehicle was that of the accused, Geoffrey Sherrer, who was the sole occupant. It was impossible, however, to verify the licence plate as it was too dirty. They decided to intercept the vehicle to investigate the matter. [ 18 ] The accused Sherrer was alone in his vehicle when Officer Sylvain approached him. He noted the smell of alcohol on the accused’s breath and that his eyes were bloodshot.

He asked the accused to step out of his vehicle, which the latter did with a slight loss of balance. [ 19 ] It is relevant to note that the accused’s driver’s licence prohibits him from drinking any alcohol whatsoever. [ 20 ] Given these observations, Officer Sylvain summoned the accused to provide a breath sample in order to analyze it by means of an approved screening device (“ASD”). Approximately two minutes elapsed between the moment that the accused was intercepted in his vehicle and the moment he was summoned to blow into the ASD.

The accused blew into the device and in the two following minutes, he was arrested on the current charges. He was read his rights. It was then 3:34 a.m. [ 21 ] A call was made to the call dispatch service to have a tow truck sent onsite.

The police officers explained that, at the same time, they took steps to have a qualified technician sent to the police station right away in order to prepare the devices that would be used to collect the required breath samples from the accused. [ 22 ] To the police officers, it was not possible to leave the accused’s vehicle onsite unsupervised, notably because it was on the side of a gravel road in an unlit area and could only be seen by drivers at the last moment. With respect, this seems quite obvious. [ 23 ] According to the police officers, the tow truck arrived at 4:07 a.m.

The accused contends that it arrived at 3:54 a.m. According to the police officers, they left for the police station at 4:09 a.m. after leaving the keys with the tow truck driver. According to Geoffrey Sherrer, the tow truck arrived earlier and he was present when his vehicle was winched onto the tow truck’s platform.

He did not know, however, what time they left for the police station. [ 24 ] Once at the police station, the accused contacted a lawyer from legal aid at the suggestion of the police officers and provided breath samples so that a breath alcohol analysis test could be performed. [ 25 ] I will not proceed to present more details of the evidence, at least for the moment, since, for example, the only time the police officers are accused of an inopportune wait is with regard to the tow truck.

The police officers felt it was necessary to stay onsite until the tow truck arrived, given the foregoing. [ 26 ] I also accept the evidence according to which the accused had a functional cell phone when he was intercepted by the police officers. ANALYSIS AND DECISION [ 27 ] On this factual basis, I propose to proceed in the same order as the motion with respect to the grounds raised. (

a) Arrest, arbitrary detention

[ 28 ] Jurisprudence has long recognized the right of police officers to intercept drivers, even at random, if this measure is aimed at certain objectives, such as verifying a driver’s right to drive, including possession of the proper documents, driver sobriety and the vehicle’s mechanical condition ( R. v. Ladouceur , [3] R. v. Orbanski; R. v. Elias , [4] R. v.

Nolet , [5] etc.). [ 29 ] As writes Charron J. in Orbanski and Elias : [6] The aim is to screen drivers at the road stop, not at the scene of the accident . [ 30 ] In this case, a vehicle travelling 50 km/h on a country road at 3:30 a.m. on a Sunday morning fully justifies the police officers’ intervention.

While they did not require as many signals, given the state of law, there is no doubt in my mind that the police officers sincerely felt there was a need to ensure the driver’s sobriety. [ 31 ] Be that as it may, the jurisprudence in no way excludes, indeed, it even takes into account, the possibility that police officers intervene and take action for more than one reason or under more than one authority. [7] In this case, they wanted to verify both the person’s sobriety and make sure that he or she was not leaving the area in a suspicious manner after an alarm was triggered. [ 32 ] Consequently, none of the accused’s rights were violated as a result of this interception. (

b) The wait time for the tow truck allegedly did not comply with the provisions of the Criminal Code [ 33 ] First of all, a clarification must be made. In support of his argument, the accused presented, among the submitted jurisprudence, a certain number of decisions that consider a question other than the one before me ( R. c. Lauzier , [8] R. v. Sirgi , [9] R. c. Gaétani , [10] etc.). [ 34 ] With respect to an impaired driving investigation, the Criminal Code provides for two distinct types of samples to be obtained that are authorized by law according to different parameters.

The first type is the one required from a driver (like Geoffrey Sherrer) in order to summarily detect, on the side of the road, if he or she is impaired by alcohol. Section 254(2) defines this procedure. The second type is the one required from a driver, once there are grounds to believe that he or she is impaired by alcohol, in order to perform a breath alcohol analysis test at the police station.

This type of sample is provided for by following the procedure described in subsection 254(3). [ 35 ] The conditions for the validity of the two types of samples are different, particularly with respect to the immediate nature of the order given by the police officer to provide them. [ 36 ] More specifically, the main judgment on which the accused relies, that of Bourque J. in Gaétani , concerns the order indicated in paragraph 254(2) of the Criminal Code , which is to provide a breath sample in the ASD.

Whatever we may think of the line of jurisprudence reiterated and described in that decision, I find it to be of little relevance in the case of Geoffrey Sherrer, as there was no such delay. The ASD was already onsite and used immediately.

The accused was arrested right away and read his rights. [ 37 ] The useful criterion for determining the validity of a pertinent order therefore emanates from section 254(3) of the Criminal Code , which reads as follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or . . . (

b) if necessary, to accompany the peace officer for that purpose. [ 38 ] In Singh , [11] the Court of Appeal for Ontario expresses what I find to be the most current, complete and just statement regarding the question. [13] The

summary conviction appeal judge was wrong to distinguish Vanderbruggen on the basis that it was not a case about the unexplained delay between the two samples. Vanderbruggen is the governing authority. There, Rosenberg J.A. stated, at para. 12, that the question at the heart of the appeal was the meaning of “as soon as practicable”. He discussed the meaning of the phrase generally, and it is apparent that that discussion encompasses the time between the two tests. Justice Rosenberg referred to “the tests” and “the breath samples” at para. 13.

He said that the Crown was not required to provide a detailed explanation of what occurred “during every minute that the accused is in custody”. That statement obviously applies to the time between the two tests because the accused remains in custody in that interval. [14] That trial judge drew and applied the correct principles from paras. 12-13 of Vanderbruggen. The requirement that the samples be taken “as soon as practicable” does not mean “as soon as possible”. It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances.

A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason. [15] It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during

every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process byfacilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require anexact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose.

AsRosenberg J.A. said in Vanderbruggen, at para. 12, “The touchstone for determining whether the tests were taken as soon as practicableis whether the police acted reasonably.” [39] The real test to apply is the one summarized as follows in Vanderbruggen[12] by the same Court: [12] That leaves the question that is at the heart of this appeal—the meaning of as soon as practicable. Decisions of this and othercourts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under thecircumstances. See R. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150 (Ont.

C.A.) at 156; R. v. Ashby (1980), (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286 , 50C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determiningwhether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J.

No. 3065 (C.A.); and R. v. Seed, (ON CA),[1998] O.J. No. 4362 (C.A.). [40] What is the situation in this case? [41] The duration of the wait for the tow truck cannot simply be evaluated in minutes, without taking the context into account. Theaccused was not intercepted in a downtown area, but in an isolated and remote location. It is unthinkable to expect that towing servicesbe on standby 24 hours a day, 7 days a week, to cover the entire province of Québec in a matter of minutes.

Everyone in Québec knowsthat, in the event of a snowfall or a power failure for example, we cannot expect that all snow removal services or the restoration of theelectric grid be instantaneous or that a certain order of priority not be established. [42] In this case, the wait appears very reasonable given the location of the intervention. [43] Was it necessary to wait for the tow truck? [44] Basic common sense tells us that it would have been extremely irresponsible to leave the vehicle on an unlit public road, in suchcircumstances that could result in a serious accident. [45] Were there other possibilities that the police officers could have considered?

As the popular saying goes, hindsight is 20/20. Police officers work in demanding conditions and must make decisions quickly. Theirdecision to immediately dispatch other police officers to prepare the devices in order to test the accused’s breath appears highly justified. [46] The law was followed to the letter. The detention of the accused was legal and his rights were not violated. (

c) The accused [TRANSLATION] “was not authorized to seek counsel” [47] It should be noted that it has been established that the accused’s rights were read to him in full in a clear and prompt manner. [48] The accused’s argument, if I fully grasp its essence, is the following. He had a cell phone.

If the police officers had suggestedthat he use it to contact a lawyer, he could have done so. [49] This argument faces a major hurdle: under cross-examination, the accused acknowledged that while it was possible that at onepoint, he inwardly considered calling a lawyer, he did not mention this to the police officers (hearing dated June 1, 2016, 10:13 a.m., 43 seconds et seq.). At the most, all he did at some point was ask the police officers if he could call his parentsso they could come for his vehicle rather than having it towed.

The police officers refused. [50] Hence, according to Geoffrey Sherrer’s version, although he was able to inwardly consider the possibility of trying to reach alawyer while waiting for the tow truck, and even though he did not know any lawyer at that moment, he did not mention a word about itto the police officers. [51] At the police station, the accused spoke with a lawyer from legal aid and blew into the breathalyzer. [52] In Owens,[13] the Court of Appeal for Ontario exposes the state of the law on the matter. Here is a

summary of the relevantfacts: [5] Upon arrest, the police advised the respondent of his right to counsel using the standard language from the O.P.P. issuedcard. The arresting officer asked the respondent: “Do you understand?” and the respondent answered: “Yes.” The arresting officer thenasked the respondent: “Do you wish to call a lawyer now?” and the respondent replied: “No, not right now.” The respondent was thentaken to the police station where he provided breath samples into an Intoxilyzer device that registered a reading of 160 mg of alcohol in100 mL of blood.

When the respondent was returned to the arresting officer, that officer again asked whether the respondent wished tospeak to counsel. The respondent replied: “No, I have nothing to hide.” The respondent did not ask to speak to a lawyer at any pointwhile in police custody. [6] The perspectives of the arresting officer and the respondent regarding these events differ.

The arresting officer testified thathe interpreted the respondent’s reply of “No, not right now” to mean that the respondent did not want to speak to a lawyer at that“instance and presence” and that is why he asked the follow up question at the police station. However, the arresting officer also testifiedthat it was his usual practice to ask a detainee more than once if he or she wishes to contact counsel because he understood it to be

important. It was his evidence that the respondent’s replies did not indicate to him that the respondent wanted to speak to a lawyer duringtheir interaction. [7] In contrast, the respondent testified that he replied as he did when he was first advised of his right to counsel because he didnot understand how he could call counsel “now” as it was 2:00 a.m. and he was handcuffed in the back of a police cruiser. Therespondent agreed, however, that he had told the arresting officer that he understood his rights.

He further testified that he did not raisethe issue of speaking with counsel at any point because he felt that he was not in a position to make requests of the police and shouldinstead follow their lead. The respondent also testified that he wanted the opportunity to speak privately to counsel and assumed that hewould be given that opportunity when he was taken to the police station.

He explained his comment about having “nothing to hide” asmeaning that, given that the breath samples had already been taken, “the cat was out of the bag” and that there was no point in speakingto a lawyer “then and there.” [53] The trial judge dismissed the accused’s motion sustaining that his right to retain counsel was violated. The

summaryconvictions appeal judge quashed the decision and the Court of Appeal subsequently reinstated it. [54] The Court of Appeal did not do so based on the accused’s waiver of his right to counsel, but rather on the accused’s failure toinvoke this right:[14] [22] In her analysis, the appeal judge went straight to the issue of waiver of the implementational duties under s. 10(b), bypassingany consideration of whether the respondent had invoked his right to consult with counsel and never considering the trial judge’sfindings with respect to this issue.

Indeed, the appeal judge held that the trial judge erred in law by deciding the Charter application onthe issue of invocation instead of waiver. In my view, it was the appeal judge who erred in her approach. The issue of waiver of s. 10(b)rights only arises when the accused has established on a balance of probabilities that he invoked his right to counsel. [23] Professor D.

Stuart discusses the development of the law regarding the interaction between the invocation of the right tocounsel and the corresponding police implementation duties in Charter Justice in Canadian Criminal Law, 6th ed. (Toronto: Carswell,2014), at p. 429: In Manninen, the Supreme Court held that the right to counsel leads to correlative obligations on the police. The Court left open thequestion of whether the police duties were dependent upon the accused asserting the right as Manninen had done.

The Ontario Court ofAppeal in Anderson had earlier held that the police duties only arose where the accused had in any manner chosen to invoke or exercisehis right to retain and instruct counsel. Anderson has been strongly criticized as unduly weakening the right to counsel by only protectingthose accused who are knowledgeable, thoroughly understanding and assertive. The language of obligation throughout Manninen and itsstrong ruling on the facts suggested that the Supreme Court might well reverse Anderson.

In Baig (1987), the Supreme Court did exactlythe opposite in adopting the Anderson proposition that the duties depend on the accused asserting his right. [24] The Supreme Court has been consistent since R. v. Baig, (SCC), [1987] 2 S.C.R. 537, in holding thatimplementation duties “are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel”: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, at paras. 30, 33; R. v. Taylor, 2014 SCC 50 , [2014] 2 S.C.R. 495, at paras. 23-24.

This court has also held that implementation obligations ariseonly when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565 , 295 O.A.C. 309, at para.17. [25] The Supreme Court has also made clear that police implementational obligations flowing from s. 10(

b) are not absolute.Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonableopportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended: R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 27. [26] While the onus rests with the Crown to prove that a detainee has unequivocally waived his right to consult counsel, and thestandard required for an effective waiver is “very high”, the issue of waiver arises only if a detainee first asserts the right: R. v.

Prosper, (SCC), [1994] 3 S.C.R. 236, at pp. 274-75; Sinclair, at paras. 27-28. Further, “absent proof of circumstances indicatingthat the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that heasked for the right but it was denied or he was denied any opportunity to even ask for it”: Baig, at p. 540, citing R. v. Anderson (1984), (ON CA), 10 C.C.C. (3d) 417 (Ont C.A.), at p. 431. [55] In view of the accused’s testimony, his contention that he was not [TRANSLATION] “authorized to seek counsel” is thereforeinexact.

In the patrol car, the accused did not ask the police officers for anything. This ground must therefore also fail. [56] For these reasons, the motion is DISMISSED. __________________________________ Serge Champoux J.C.Q. Mtre. Cassandra Carola

Counsel for the prosecutor Mtre. Alexandre Caissie Counsel for the accused Hearing date: June 1, 2016