2019 QCCQ 7113, 2019 QCCQ 7113

R. c. Windover 2019 QCCQ 7113 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF 550-01-105451-183 Criminal and Penal Division No: 550-01-105451-183 DATE: October 31, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE ALEXANDRA MARCIL, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

DAMIEN JAMES WINDOVER Accused ______________________________________________________________________ DECISION ON THE APPLICATION UNDER THE CHARTER FOR THE EXCLUSION OF EVIDENCE ______________________________________________________________________ [ 1 ] The applicant is charged with impaired driving and driving over 80 milligrams.

On March 11, 2019, he filed an application under the Charter for the exclusion of evidence. [ 2 ] The application raises different legal issues: Ground 1: Whether the Crown has established on a balance of probabilities the reasonable and probable grounds to make a breath demand and to arrest and detain the applicant for that purpose. The defence claims a breach of sections 8 and 9 of the Charter ; Ground 2: Whether the applicant was informed without delay of his right to counsel. The defence claims a breach of

section 10(

b) of the Charter , more particularly of the informational component of this right; Ground 3: Whether breath samples were taken as soon as practicable. The defence claims a breach of

section 8 of the Charter . [ 3 ] The defence requests the exclusion of the evidence under section 24(2) of the Charter . CONTEXT [1] At first, the Court will address the reasonable and probable grounds to place the applicant under arrest and to detain him for the purpose of providing breath samples. Here are the relevant facts in this regard. [2] Officer Valérie Charbonneau testified that, on January 28, 2018, she was on night patrol, assisting Unit 110 on a call (Officer Gauthier and Officer Chauvette).

She arrived first at the scene, located at [...] in Gatineau, at 1:44 a.m. and 52 seconds. [3] In the parking lot of this residential dwelling, one vehicle was parked perpendicular to the others. This vehicle was in operation and the lights were on. [ 4 ] Officer Charbonneau parked her car behind the operating vehicle. The windows were dirty and foggy. She heard a young woman crying, almost screaming. The applicant was inside the vehicle, holding the woman’s head on his shoulder. The officer testified that at the time she was under the impression that he was about to strangle her. She informed Unit 110.

They were on their way to the scene. Then she went over to the vehicle with the goal of removing the applicant’s grasp on the passenger. [ 5 ] But when Officer Charbonneau opened the driver’s door, she realized that her perception was wrong. The woman was crying and the applicant was attempting to comfort her. The officer therefore asked what was going on. [ 6 ] Officer Charbonneau testified that she smelled alcohol from the car and that when the applicant turned towards her, the smell became more intense.

According to her testimony, it came from the applicant’s breath. [ 7 ] The applicant tried to step out of the car, although he was still buckled in. The officer put her hand on his shoulder so that he would stay seated.

[8] The officer asked the applicant three times to hand over the keys. She testified that in response to her demand, the applicantrubbed the steering wheel and looked at the right side of the dashboard and then at the left side of the wheel to get the keys. Theapplicant finally gave the keys to the passenger. [9] At 1:47 a.m., Officer Charbonneau considered that she had reasonable grounds to believe that the driver’s faculties wereimpaired by alcohol and proceeded with his arrest.

She informed him that he was placed under arrest for care and control of a vehiclewhile impaired and that he should go to the police station to provide breath samples. [10] Officer Gauthier and Officer Chauvette arrived at the scene while the applicant was standing outside his vehicle and OfficerCharbonneau was handcuffing him.

Officer Gauthier and Officer Chauvette took charge of the applicant, who was brought inside thetruck and was later driven to the police station. [11] Officer Charbonneau’s notebook contains no observations on signs of the applicant’s consumption or impairment before he wasplaced under arrest. She did not inform Officer Gauthier and Officer Chauvette of the signs or symptoms that were observed prior to thearrest. [12] Officer Charbonneau took charge of the passenger and stayed at the scene.

At 2:40 a.m., she placed her under arrest. [13] At 3:09 a.m., Officer Charbonneau was back at the police station, starting to write her report. This was about two hours after thearrest. Her report states the following signs of impairment: The smell of alcohol coming from his breath;His slow and awkward movements;His slurred speech;His heavy eyelids. [14] There was no indication of the time at which these signs or symptoms were observed. ANALYSIS [15] Under

section 9 of the Canadian Charter, “Everyone has the right not to be arbitrarily detained or imprisoned.” [16] A police officer has the right to arrest someone without a warrant if he or she has reasonable grounds to believe that this personhas committed or is committing an indictable offence. [17] An officer may demand that a person provide samples of breath to a qualified technician at the police station if he or she hasreasonable grounds to believe that the person is committing an offence as a result of the consumption of alcohol. [18] As the Supreme Court explained in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 51: “The requirementin s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to alawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms .” [19] The issue before the Court is whether Officer Charbonneau had reasonable and probable grounds at the time of the arrest. [20] As explained in Bernshaw, there is both a subjective and an objective component to establishing reasonable and probablegrounds.

The officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and theremust be reasonable grounds for this belief (Bernshaw at para. 48).[1] [21] The asserted grounds must be justified according to an objective measure of a reasonable person standing in the shoes of theofficer.

Reasonable and probable grounds are about “probabilities.” They do not involve a mathematical assessment of facts andcircumstances, but rather a common sense and non-technical approach. [22] The officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offencebefore making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. [23] Reasonable and probable grounds lie between suspicion and proof beyond a reasonable doubt.

In the context of a breathdemand, the reasonable and probable grounds standard is not very high or difficult to meet. There is no necessity that the defendant be ina state of extreme intoxication. Slight impairment to drive refers to a reduced ability in some measure to perform a complex motorfunction such as driving a motor vehicle.

The test is whether there were reasonable and probable grounds to believe that the suspect’sability was even slightly impaired by alcohol. [24] This standard applies to the totality of the circumstances, considering the relevant facts cumulatively, where credibly basedprobability replaces suspicion and possibility.

This does not demand that police officers always be correct, but that they always bereasonable. [25] What is not relevant is the evidence after the arrest, since it was not observed or communicated to the officer at the time of thearrest and cannot be fairly used to assess whether reasonable grounds for the arrest and breath demand existed. [26] The reasonable grounds may validly arise from the officer’s observations, without the use of an approved detection device.Then, in such a case, the question is whether the officer has acquired reasonable grounds or whether he or she should pursue furtherinvestigation, for instance by ordering the applicant to undergo a detection test or physical coordination tests or other.[2] The use of theapproved detection device is desirable when the symptoms observed are equivocal or may be associated with any cause other thanalcohol. [27] The standard would not be met if the officer, before making a demand, did not make such efforts as are practicable to

investigate whether the signs on which he or she relies might as well have resulted from factors other than alcohol consumption when the circumstances present some reasonable possibility of that being the case. [3] [ 28 ] The smell of alcohol coming from the car is not sufficient. Erratic driving and the smell of alcohol may be sufficient to establish reasonable grounds, depending on the circumstances.

It is a case-by-case assessment. [ 29 ] Let us examine the facts in the present case. [ 30 ] This case rests on a window of a little more than two minutes, during which the officer could observe the signs of consumption of alcohol and signs of impairment in the applicant. This is a relatively short period of time, from which we must also subtract a few seconds for the officer to inform Unit 110 of her preliminary observations and then to go over to the car.

However, although it is a short period of time, it may be sufficient if the symptoms are clear. [ 31 ] There was no accident or erratic driving. [ 32 ] According to Officer Charbonneau, the applicant’s vehicle was parked perpendicular to the others in a private parking lot. After the officer opened the door, the applicant tried to step out while still buckled in.

He had slow and awkward movements, he smelled of alcohol, and he had slurred speech and heavy eyelids. [ 33 ] The Court does not draw an inference from the perpendicular position of the car in relation to the others in the parking lot, since the applicant and the passenger had just stopped in a private spot while they were in the middle of an emotional crisis. The engine was still on. [ 34 ] The fact that the applicant tried to step out of the car while he was still buckled in is not considered a sign of impairment.

The officer suddenly opened the door of a car parked in a private parking lot, obviously disturbing the two people inside the car, who were in the middle of an emotional crisis. The applicant’s reaction is considered a normal sign of surprise. [ 35 ] When Officer Charbonneau opened the door and asked “What’s going on”, it is unclear whether this was put to the passenger, to the driver or to both. It is unclear whether one or the other answered and what was said. There was a smell of alcohol coming from the car. However, the passenger was highly intoxicated.

The Officer testifies that the smell was also coming from the applicant’s breath. This smell was observed before the arrest. [ 36 ] The arresting officer is allowed to ask the driver questions, to use sobriety tests or to make a demand in relation to a roadside screening device. Of course, the officer is under no obligation to use the sobriety tests or the roadside screening device. But it may help to arrive at grounds to believe instead of mere grounds to suspect.

In this case, none of this was done. [ 37 ] From her testimony, it is not clear whether, at the time she asked for the car keys, her investigation was complete and whether she considered that she had sufficient grounds to place the applicant under arrest. Officer Charbonneau testified that the applicant had slow and awkward movements, referring to when she asked him to hand over the car keys. Her testimony in this regard was hasty and lacked details. The evidence of the applicant’s reaction to her demand is ambiguous.

He rubbed the steering wheel, looked at the right side of the dashboard and went to the left side of the wheel to get the keys and finally give them to the passenger. [ 38 ] Obviously, the applicant seemed reluctant to cooperate and to give her the keys. The officer may have been upset by the applicant’s lack of cooperation. But her testimony did not show any coordination problem on the applicant’s part. His attitude may be associated with causes other than alcohol. The officer did not investigate in this regard.

The evidence is silent as to why the keys were given to the passenger and who the owner of this vehicle was. [ 39 ] In deciding whether reasonable grounds exist, the arresting officer must conduct the enquiry which the circumstances reasonably permit and take into consideration all available information.

As quoted by the Supreme Court in Storrey : The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such enquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably. [4] [ 40 ] Officer Charbonneau did not ask the driver to step out of the vehicle and/or perform any sobriety or coordination tests.

She did not try to clarify why the applicant was reluctant to give her the car keys and why he gave them to the passenger. [ 41 ] The applicant spoke to the officer extensively after being placed under arrest. However, it is unclear if, when and to what extent the applicant spoke to the officer while inside the car before his arrest. [ 42 ] The officer mentioned that the applicant had slurred speech. This was written in her report. However, her testimony does not mention any verbal exchange between herself and the applicant before his arrest.

Based on the evidence, the Court is unable to assess whether the applicant spoke to her at all before being arrested and, if so, unaware of his words. [ 43 ] The officer also states that the driver’s eyelids were heavy. This sign may be associated with other causes, especially in the context of an emotional crisis, which was so intense that the officer was under the impression that the applicant was about to strangle the passenger. Before considering the driver’s eyelids to be a sign of impairment, Officer Charbonneau could have conducted further investigation.

In the circumstances of this case, having heavy eyelids is not considered a sign of impairment by alcohol. In any case, the Court has no idea when the applicant’s eyelids were observed. [ 44 ] In sum, there was no erratic driving. The smell of alcohol from the applicant’s breath was observed before the arrest. The evidence is unclear concerning the applicant’s ability and coordination. We do not know when the slurred speech was observed, or the heavy eyelids.

[ 45 ] There are distinctions to be made between the case at hand and those pleaded by the prosecution. [ 46 ] In R c. Proulx , [5] pleaded by the prosecution in the present case, the officer observed numerous signs: the applicant had turned on a red light, his breath had a smell of alcohol, his eyes were red, he thought a long time before answering questions, his speech was slow and ambiguous, he had difficulty talking, and he had slurred speech, a dry mouth and trouble swallowing. [ 47 ] In R c.

Lafrance , [6] also pleaded by the prosecution in the present case, the officer observed numerous signs: the driver had very erratic driving, his breath had a strong smell of alcohol after he got out of the car, his walk was slow and wavering, he had red and glassy eyes and the zipper of his pants was down. [ 48 ] In Dupuis c.

R ., [7] also pleaded by the prosecutor in the present case, the officer also observed numerous signs: the driver had red eyes and a smell of alcohol on his breath, he urinated in a parking lot, h is actions were inconsistent and his answers to police questions were implausible. [ 49 ] The existence of reasonable and probable grounds is a case-by-case assessment. [ 50 ] In R. c. Massé , [8] the court considered the following signs to be insufficient: vehicle involved in an accident in which the owner was injured and had glassy and red eyes and his breath smelled of alcohol. [ 51 ] The same goes for Brouillette c.

R ., [9] where the following signs were considered insufficient: very red eyes, alcohol on the breath, difficulty pulling out the requested documents, loss of balance, etc. [ 52 ] In Desjardins c.

R ., [10] the following signs were considered not sufficient: erratic driving, odour of alcohol in the vehicle, the admission that alcohol was consumed, red eyes, halting or hesitating speech, loss of balance, etc. [ 53 ] In determining the grounds for arrest in the present case, the Court must limit its analysis to the signs that were observed by the officer within the two minutes before the arrest. [ 54 ] Apart from the smell of alcohol, it is unclear when other signs were observed. The officer’s memory is vague and she did not take any notes in this regard. [ 55 ] As explained by the Supreme Court in Wood v.

Scheaffer: The importance of police notes to the criminal justice system is obvious. As Mr. Martin observed of properly-made notes: The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate. [11] [ 56 ] In Wood v. Scheaffer, the majority of the Court concludes that police officers have no right to consult with counsel before making notes on incident.

Police officers have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable. Police manuals have long emphasized the importance of accurate, detailed and comprehensive notes. [ 57 ] According to the Supreme Court, the purpose of police notes is not to explain or give justifications after the facts, but simply to set them out as quickly as possible. [12] [ 58 ] Officer Charbonneau’s notebook contains no information on signs of consumption or signs of impairment.

A few words would have been sufficient to recall what signs were observed before the arrest and to keep her memory fresh and reliable. Her report contains some observations, but with no precision as to whether they were observed before or after the arrest. [ 59 ] Her failure to take notes has an impact in this particular case, since the grounds for the arrest are at the heart of the lawfulness of this whole intervention. Her failure has an impact not only on her credibility but also on the reliability of the evidence.

The Court is unable to assess what signs the officer had knowledge of at the time of the arrest. [ 60 ] Officer Charbonneau has some explanations for her failure to take notes, but none that satisfy the Court. She invokes a lack of time. At the beginning, she was alone with the driver and the passenger.

Upon the arrival of Officers Gauthier and Chauvette, however, once the applicant was safely placed inside the truck, handcuffed, the Court considers that the officer would have been able to write down at least a few words. [ 61 ] Officer Charbonneau assumes that she is under no obligation to write down the signs of impairment in her notebook, arguing that these signs will later be written in her report, repeating several times before the Court that her notes are for herself. [ 62 ] The law has evolved over time. The notes are no longer a simple reminder for the sole use of the police officer.

They constitute a fairly significant evidentiary document that should be disclosed to the opposing party. [ 63 ] In sum, her memory is not fresh. She has no notes concerning when most signs were observed. In addition, regarding Officer Charbonneau’s credibility, her testimony about her impression that the applicant was about to strangle the passenger seems doubtful.

Also, we note that during cross-examination, she seemed surprisingly reluctant to answer many questions. [ 64 ] Consequently, it has not been established on a balance of probabilities that Officer Charbonneau had reasonable and probable grounds to make a breath sample demand and to place the applicant under arrest. [ 65 ] When a police officer arrests a person without reasonable grounds and orders that person to come to the station in order to give breath samples, that arrest is arbitrary. It is a breach of

section 9 of the Charter .

Analysis under section 24(2) [ 66 ] Since the evidence was obtained in a manner that violates the Charter , according to the reasoning in R v. Grant , the Court must analyze:

a) The seriousness of the Charter -infringing state conduct;

b) The impact of the Charter breach on the Charter -protected interests of the applicant, and

c) Society’s interests in the adjudication of the case on its merits. [13]

a) The seriousness of the Charter -infringing state conduct [ 67 ] The seriousness of the breach refers to the gravity of the state conduct. The more deliberate the state conduct that led to the Charter violation, the greater the need for the Court to dissociate itself from that conduct by excluding the evidence linked to it. [ 68 ] Where the law is well settled, it is unreasonable to remain ignorant of criminal law requirements and Charter standards.

As explained by authors David Paciocco and Lee Stuesser in The Law of Evidence , [14] where the police officer is ignorant of basic and settled law, the breach moves unequivocally into the bad faith zone and is an aggravating factor. Carelessness also pushes cases to the “bad faith” end of the spectrum. [ 69 ] The reasonable and probable grounds requirement for placing someone under arrest is not new. The officer should have known about her powers of arrest and the Charter limits. The officer ranks as a sergeant, was trained as a qualified technician and has broad experience in similar cases.

She cannot disregard the legal requirements of the well-settled state of the law on the powers of arrest. [ 70 ] In this case, there was no emergency to act quickly and to stop her investigation. [ 71 ] Moreover, her failure to take notes concerning the grounds of arrest and her explanations in this regard raise questions about her good faith. [ 72 ] The Court also notes that in the present case, there are two Charter breaches (

section 8 and

section 9). Once the arrest is unlawful, any search performed thereafter is in breach of

section 8 . [ 73 ] Consequently, the state conduct militates strongly in favour of excluding the evidence.

b) The impact of the Charter breach on the Charter -protected interests of the applicant [ 74 ] This criterion deals with the nature and degree of intrusion of the Charter breach. [ 75 ] The applicant was arrested, handcuffed and brought to the police station. The applicant’s arrest was arbitrary and consequently the demand for a breath sample was unlawful. There are two Charter breaches. [ 76 ] There is no presumption favouring the exclusion of bodily sample evidence.

c) Society’s interest in the adjudication of the case on its merits [ 77 ] On the one hand, the public has an interest in the conviction of impaired drivers, and bodily samples are highly reliable evidence.

On the other, this Court considers that the public has a strong and vital interest in having a justice system that is above reproach, especially when the state of the law is well settled and well known, as it is regarding the powers of arrest. [ 78 ] The requirement of reasonable grounds to believe that a person has committed or is committing an indictable offence before the arrest is well known and part of day-to-day police work. [ 79 ] The importance of this requirement to citizens is self-evident.

This requirement is at the heart of our free and democratic society. [15] [ 80 ] This third criterion militates in favour of excluding the evidence. [ 81 ] After weighing the three criteria, the Court adopts a long-term approach and gives weight to the long-term general effect of the impact of the non-compliance on the overall repute of the administration of justice. The exclusion of evidence in this particular case is the price to pay for the protection of all citizens against arbitrary arrest, which is at the heart of our free and democratic society. THEREFORE : The application is granted on its first ground.

In light of this conclusion, there is no need to address the other grounds of the application. The applicant’s arrest was a breach of

section 9 of the Canadian Charter . The evidence was obtained in a manner in violation of

section 8 and

section 9 . The use of this evidence in the proceedings would bring the administration of justice into disrepute. The Court orders the exclusion of the evidence.

__________________________________ Alexandra Marcil, J.C.Q. Mtre Anne Frédérique Coulombe Attorney for the prosecution Mtre David Anber Attorney for the applicant Dates of hearing: March 27, 2019, and April 30, 2019 [11] Wood v. Schaeffer , [2013] 3 S.C.R., at para 66.