r v. SUSAN COUTURE DITCHAM, 2012 QCCQ 4558

R. c. Ditcham 2012 QCCQ 4558 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Penal and Criminal Division No. 455-01-011023-110 DATE: JUNE 7, 2012 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

SUSAN COUTURE DITCHAM Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is facing the following charge: 1. On or about January 1, 2011, in Bedford, district of Bedford, did operate a motor vehicle, having consumed alcohol in such a quantity that the proportion thereof in her blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, committing thereby the offence punishable on

summary conviction provided by sections 253

(1) b) and 255 (1) of the Criminal Code . [ 2 ] She contends that her rights guaranteed by the Canadian Charter of Rights and Freedoms (the “Charter”) were violated and that, therefore, the evidence obtained against her should be excluded. THE FACTS [ 3 ] During the night of December 31, 2010 to January 1, 2011, more precisely at 3:45 a.m., police officers Désorçy and Beauchamp, of the Sûreté du Québec, were on patrol in the Bedford area. [ 4 ] The call dispatch centre notified them that an alarm had gone off at the Bedford municipal garage.

In fact, they were informed that a 911 call had come from that location but the caller had hung up. [ 5 ] The call was made to the 911 line but was interrupted before the telephone operator could begin the conversation.

For the police officers notified, that could, of course, mean that a person was trying to call 911 but someone else hung up the phone, but it could also mean that the alarm system was not operating properly or that someone had deliberately tried to interrupt the alarm system signal transmitted to an alarm station, for example by cutting the wires when committing a crime. [ 6 ] Ultimately, it could easily be a serious matter and the police officers considered it as such. [ 7 ] Bedford is a small municipality of about 3000 inhabitants.

The police officers arrived on the site very shortly after the dispatcher’s call. [ 8 ] The municipal garage is on rue Dupont. When the police officers approached, they first saw absolutely no automobile traffic or anyone whatsoever near the building.

From the front of the building, the fence around the property seemed intact and no movement was noted inside. [ 9 ] However, they saw a vehicle moving slowing along rue Campbell, the first perpendicular street running east, from where the police officers were, approximately three properties after the municipal garage. [ 10 ] Thinking that perhaps there was a burglary in progress in the municipal garage and that the perpetrators were about to leave, they turned off the lights on the patrol car and followed the vehicle. [ 11 ] It crossed rue Cyr, still on Campbell, then turned immediately into the parking lot of a bowling alley very nearby. [ 12 ] The vehicle headed to the back of the parking lot of the business, which was closed at that late hour.

Its parking lot was otherwise empty. At that location, the police officers observed the female driver and the passenger get out of the vehicle.

[13] The female driver walked toward the passenger side of the vehicle, while the passenger manipulated the belt of his pants as ifhe were going to urinate. [14] The police officers decided to approach the occupants of the vehicle. Officer Beauchamp approached the female driver, theaccused, while his colleague approached the passenger. [15] Officer Beauchamp noted right away that the female driver’s eyes were red and he asked her whether she had been drinking.She said she had had two glasses of wine.

The police officer asked that an approved screening device (“ASD”) be brought to him. [16] The passenger intervened at that point and ordered the accused to sit in the car in which the two individuals had arrived. Heargued with the police officers about the absence of reasonable grounds to intervene, and indicated that the driver, the accused, wouldnot get out of the vehicle.

The police officers had to inform him of possible charges of obstruction of their work, in order to again haveaccess to Susan Couture Ditcham. [17] The accused’s attorney objected to the admissibility of the evidence stemming from the subsequent operations, alleging thatthe detention was arbitrary. Hence, that is the evidence as regards the motion. To be more specific, it is useful to point out that only thetwo police officers were heard. Neither the accused nor her companion testified. [18] When the ASD arrived, the accused provided a breath sample.

The device indicated that the accused had failed the test.Given those results, the police officers took the accused with them to the police station, where she provided breath samples establishingthat the level of alcohol in her blood was 175 and 177 mg of alcohol per 100 ml of blood, depending on the sample. [19] It was agreed that that was the evidence at the trial.

If I were to allow the motion and set aside the evidence consecutive tointerference with the alleged rights of the accused, the essential elements of the offence would be absent (particularly the evidence of theconcentration of alcohol in the accused’s blood) and an acquittal would have to follow. [20] However, if the motion were dismissed, it was agreed that no other defence would be raised, and that all the useful evidenceof both parties had been presented. ANALYSIS AND DISCUSSION [21] It is agreed that the right in the Charter that is said to have been violated is that provided for in its

section 9: [22] The

section reads as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned.[1] [23] In her motion, the accused expressed her contentions in that regard as follows: [TRANSLATION] 5.1 There was no reasonable or probable suspicion that the petitioner had, at the time she was stopped without a warrant,committed a criminal offence or was about to commit one, the whole contrary to sections 254(2) and 495 of the Criminal Code. 5.2 At the time she was stopped, there was no suspicion or reasonable ground for believing that the petitioner had committedan offence under the Highway Safety Code, the whole contrary to

section 635 of the said Code. 5.3 The stopping of the petitioner followed by her arrest is not within the general framework of the duties of the peaceofficers pursuant to the legislation or common law. 5.4 She was stopped arbitrarily, which is contrary to

section 9 of the Canadian Charter of Rights and Freedoms. 5.5 The police officers of the Sûreté du Québec exercised their powers capriciously, in an unjustified manner andunreasonably, given the circumstances as a whole. 5.6 It was not a question of stopping the petitioner or of verification based on a statutory or common law power. 5.7 The petitioner’s arrest resulted in her being detained in a manner inconsistent with the legal guarantees provided for inthe Canadian Charter of Rights and Freedoms. [24] The accused’s argument is essentially as follows.

The Charter guarantees her the right to circulate freely and law enforcementofficers cannot restrict her movements (by arresting or detaining her) without a valid reason for believing that an offence is beingcommitted. [25] In the circumstances, the police officers acted in her regard with no valid reason for believing or even suspecting that she wascommitting any offence.

They therefore did not have the right to require her to provide a breath sample, or after that, on the faith of theresult of the sample, to require her to provide breath samples subsequent to the breath analyzer test. [26] In ruling on the issue, I must point out certain applicable legal principles. [27] The first is that there is a common law or statutory power granted to police officers in specific legislative texts (such as theQuébec Highway Safety Code) that allows them to stop any motorist, even at random and without any justification, if the purpose is toverify the validity of the driver’s licence, the vehicle’s registration or the vehicle’s insurance; to ensure that the vehicle is in propermechanical condition; or to verify that the driver is sober (see for example R. c.

Ladouceur (SCC), 1990 1 S.C.R.1257).

[ 28 ] The second principle is related to the first; perhaps it can even be said that it is incidental to it. It stipulates that the power of police officers also extends to parked vehicles, at least those in the parking lots of businesses. [ 29 ] An illustration is found particularly in R. v. Dault , 2010 QCCA 986 , in which Gagnon J. stated the following: [TRANSLATION] [94] Lastly, it is appropriate to respond briefly to the first question in dispute proposed by the appellant, i.e. whether

section 636 of the Highway Safety Code applies when the vehicle stopped is in the parking lot of a business. [95] The judge of the Superior Court wrote the following: [TRANSLATION] “Here, however, the vehicle was not on a public thoroughfare.

It was in the parking lot of a business”. [59] If it is true that that phrase challenges the application of the Highway Safety Code in the parking lot of a business, it seems to me that the Court’s judgment in Thibeault [60] ruled on that contention. and in the ruling of Dalphond J.A.: [TRANSLATION] [35] With respect for my colleagues and the respondent’s attorney, that was entirely legal and contending the opposite is tantamount to preventing police officers from performing their prevention and assistance work. [36] Once they are legally in proximity to the respondent’s vehicle, the police officers could, wholly legally, make visual and olfactory observations.

Until then, the accused was not in any way stopped, not to mention detained. Furthermore, there was no frisk, search or seizure. [ 30 ] The third relevant principle is that being stopped by a police officer or any contact between a police officer and a citizen does not constitute being arrested or detained. [ 31 ] In 2009, in R. v. Suberu , 2009 SCC 33 , the Supreme Court of Canada rendered a landmark decision on the issue. [ 32 ] The question before the Supreme Court was whether the accused, Suberu, was detained when a police officer intervened in a branch of a business in Ontario.

Suberu crossed a police officer entering the establishment and said to him: “[h]e did this, not me, so I guess I can go”. The police officer was arriving to reinforce another officer that he could see inside, busy with a first individual. [ 33 ] The police officer asked the accused to wait a minute and followed him outside, saying that he wanted to speak to him before he left. [ 34 ] Suberu got into his vehicle with the police officer next to him outside. The police officer asked the accused to identify himself and asked him questions about the other individual inside.

During the conversation, the police officer received additional information, describing in particular the vehicle sought that the individuals were driving. The vehicle corresponded to the accused’s. During the conversation, the police officer saw bags inside the vehicle that corresponded to what the police officers were looking for. [ 35 ] Given those observations, the police officer arrested Suberu and read him his constitutional rights, particularly that he could retain the counsel of his choice (

section 10(

b) of the Charter ). [ 36 ] One of the questions that had to be answered was whether, apart from the right to be protected from being arbitrarily arrested and detained (

article 9 of the Charter ), his right to counsel “without delay” (

article 10( b )) was respected when he was detained. That question does not arise here, however. [ 37 ] The Supreme Court said the following in particular on the subject: [6] In the case at hand, the trial judge held that the initial part of the encounter was merely preliminary or exploratory and that it only became incumbent upon the police officer to inform Mr. Suberu of his right to counsel under s. 10(

b) of the Charter a few minutes into the encounter when the officer determined that Mr. Suberu was in fact involved in the incident under investigation and that he could not let him go. This moment coincided with Mr. Suberu’s arrest, at which time the officer promptly informed him of his right to counsel. The trial judge therefore concluded that there had been no infringement of Mr. Suberu’s constitutional rights and he dismissed the Charter application. The Court of Appeal upheld this ruling. [7] We see no basis to interfere with the trial judge’s conclusion that Mr.

Suberu’s constitutional rights were not infringed. While Mr. Suberu was momentarily “delayed” when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter . Mr. Suberu did not testify and, unlike the facts in Grant, the evidence does not support his contention that his freedom to choose whether or not to cooperate with the police was removed during the period of time prior to his arrest. Thus, his s. 10(

b) right to counsel was not engaged during this period. It was only later, after the officer received additional information indicating that Mr. Suberu was probably involved in the commission of an offence and determined that he could not let him leave, that the detention crystallized and Mr. Suberu’s rights under s. 10 were engaged — a moment which, on the facts of this case, coincided with his arrest. Upon arresting Mr. Suberu, the police officer promptly and properly informed him of his right to counsel. There was no violation of the appellant’s right under s. 10(

b) of the Charter, and therefore the appeal is dismissed. . . . [23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter , even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court’s conclusion in Mann that there was an “investigative detention” does

not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows: “Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter , every suspect they stop for purposes of identification, or even interview . The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”.

But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him . We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so. [Emphasis added; at para. 19.] [24] As explained in Grant , the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question.

It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights.

To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter . . . . [31] The trial judge’s finding that the initial part of the encounter was of a preliminary or exploratory nature on its face does not support the contention that Mr. Suberu was under detention within the meaning of the Charter at this point.

It suggests rather that Constable Roughley’s conduct indicated that he was engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled. Looking at the matter through the lens of the detention analysis proposed in Grant, the trial judge’s conclusion that the circumstances did not trigger the right to counsel cannot be said to be in error.

There was no right to counsel because there was no detention. [ 38 ] I am aware, in the proposed analysis, of the judgment rendered on October 31, 2007 by the Honourable Cournoyer J.S.C. in Marc-Olivier Lessard ( 2007 QCCS 4793 ). [ 39 ] However, in my opinion, the judge did not, at the time he rendered the decision, have the light shed by the Supreme Court in Suberu , but in addition, he did not have a factual basis comparable to that being studied here. [ 40 ] The ruling contains the following statement or observations of the judge: [TRANSLATION] [42 ] No act or fact implied that Mr.

Lessard had committed an offence. Nothing indicated that the automobile departed because Mr.

Lessard saw the police officers and fled. [43] No fact establishes the existence of a recent offence or one under way, unless, of course, we consider that just the presence of an automobile, in the middle of the night, near a body shop or any other business is sufficient to meet the test set forth by the Supreme Court in Mann . . . . [72] If police officers do not have the power to detain a person for investigative purposes in that type of situation, it is difficult to see how the response can be different in the case where the police officers have no information about the existence of criminal activities, [43] which is the case there.

The opinion of Rothman J.A. in Vigneault [44] supports Doherty J.’s proposal. . . . [79] Lastly, Mulligan differs from our case on that last point. As Sharpe J. pointed out, the circumstances of that case arose in a rural area. [80] That element accepted by Sharpe J. echoes the comments of Cory J. in R. v. Wilson , [49] in which he point ed out that: “[w] hile these facts might not form grounds for stopping a vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of a rural community”. [50] . . . [88] In R. v.

Barnes, [59] Lamer C.J . affirmed that the police can undertake “ a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring”. [60] [89] In the case at bar, the general nature of the information the police officers possessed did not make it possible to establish that the area met the test set forth in Barnes . The information can be compared to that in the police officers’ possession in R. v. Roberge . [61] In that case, the police officers knew an investigation was under way regarding thefts of computer hardware from their region’s credit unions.

There as well, the quality of the information is not comparable to that in the case at bar. [ 41 ] With respect, the facts in the present case make it possible to reach a conclusion that differs from that of Cournoyer J. in Lessard , for the following reasons in particular. [ 42 ] The presence of the police officers at that location in the town of Bedford was directly related to a 911 call during which the caller hung up, i.e. a credible call potentially indicating a serious criminal activity that could jeopardize people or property.

[ 43 ] The police officers passed in front of the building from which the call had come.

They noted no activity or any trace of a robbery at the front of the site, which, according to the police officers’ testimony, in no way indicated that there was no other opening in the rear or on the side of the fenced perimeter. [ 44 ] In accordance with good police practice, they continued to circle the neighbouring streets, looking for suspicious individuals who were fleeing. [ 45 ] One has to bear in mind that the location was not large and the area to be checked was very limited, at the exit of the small community of Bedford.

The police officers were at the front of the municipal garage on rue Dupont, rue Campbell was a few houses away and rue Cyr was at the rear of the garage. [ 46 ] In that area where there was no traffic whatsoever, they saw the accused’s vehicle moving slowly away from the municipal garage. They followed it for about a minute and saw it enter the parking lot of another business, the bowling alley, which was closed and deserted at the time, and go to the back of the parking lot, where it stopped.

The occupants immediately got out. [ 47 ] The police officers approached them and Officer Beaudoin immediately noted elements that justified requiring the accused to provide a breath sample using an ASD (red eyes, the odour of alcohol and admitted recent drinking). [ 48 ] It appears to me that it is part of the duty of police officers to intervene in circumstances in which, here again, they go to a specific location where, for serious reasons, they believe that a criminal activity may be in progress, and note the sole presence of a vehicle and observe it making a suspicious manoeuvre. [ 49 ] Another element is worth pointing out, about the degree of infringement of the accused’s movements or general freedom by the police officers before they actually took action in her regard pursuant to the powers granted by law to require a breath sample (section (254(2)(

b) of the Criminal Code ). [ 50 ] It should be noted that, until then, she had not been stopped. [ 51 ] When the accused stopped her vehicle, she did so voluntarily and, in all likelihood, was not even aware that she was being followed by a police car. Furthermore, she got out of her vehicle before noting that the police officers were in proximity. The police officers also did not turn on their vehicle’s revolving lights, but approached the occupants of the vehicle in a neutral manner.

Upon their initial contact with the accused, they detected the odour of alcohol, noted that her eyes were red, and she admitted she had been drinking, which triggered at that point the power to require a breath sample pursuant to section 254(2) (

b) of the Criminal Code . [ 52 ] Accordingly, the accused’s rights were not violated as she was not arbitrarily detained, and her motion is dismissed. [ 53 ] As for the merits of the charge, the evidence is complete and, in fact, it is not contested that, given the outcome of the motion, the evidence against the accused is established beyond a reasonable doubt. [ 54 ] For these reasons, the accused is found GUILTY of the offence as alleged. __________________________________ Serge Champoux J.C.Q. Mtre Annik Harbour Counsel for the prosecutor Mtre Pascale Gauthier Counsel for the accused Date of hearing: April 18, 2012