R. v. Stewart, 2019 ONCJ 78

ONTARIO COURT OF JUSTICE CITATION: R. v. Stewart , 2019 ONCJ 78 DATE: 2019·01·12 BETWEEN: Her Majesty the Queen — and — Tyler Stewart Reasons for Judgment: Charter Application R. Connolly ........................................................................................... Counsel for the Crown B. Scott .................................................................................... Counsel for the Defendant Felix J.: Contents Felix J.: 1 I. Introduction . 2 II. Analysis . 3 A. Onus – Charter Application . 3 B. Credibility and Reliability on the Charter Application . 3 C.

Evidence called by the Respondent 3 D. Arbitrary Detention: Handcuffing – s. 9 of the Charter 4 E. Driving Observations and the Traffic Stop . 4 F. Sidewalk . 5 G. ASD .. 5 H. Handcuffing . 6 III.

Summary of Credibility and Reliability Findings . 8 A. The Applicant 8 B. The Applicant’s girlfriend . 8 C. PC Bint 8 D. PC Golias . 9 IV. Remedy . 10

V. Disposition. 10 I. Introduction [1] The defendant is charged with “Over 80” as a result of a police investigation of an expired validation tag on the vehicle he wasoperating. The matter proceeded byway of blended application and trial.

The parties agreed in submissions that there were no trial-related issues to resolve – the Charter application would determine the result. [2] The defendant applied pursuant to ss. 8 and 9 of the Charter for the exclusion of the breath sample results alleging that he washandcuffed prior to arrest while awaiting the delivery of an ASD to the traffic stop location. [3] The Crown and Defence counsel agreed at the outset of submissions that the weight of the authorities viewed unjustifiedhandcuffing of drinking and driving suspects prior to arrest as a breach of ss. 8 and 9 of the Charter. [4] The respondent conceded that if the Court found that the applicant was handcuffed prior to arrest while awaiting the arrival ofthe ASD, the application should be granted and the evidence excluded.

The respondent’s concession was carefully articulated andpremised on three important features of the record. First, both police witnesses denied that handcuffing occurred prior to arrest. Assuch, no justification was expressed by the police witnesses grounded in public safety, police safety, exigency, or any othercircumstance. Second, there was no justification to support enhanced measures such as handcuffing. The defendant was polite andcooperative. The police were polite and professional. The defendant presented no security risk to the police.

Third, the Crownconceded, (without abandoning the opportunity in a suitable case) that given the peculiarities of the record R. v. Jennings, 2018 ONCA260, had no application. [5] For the reasons that follow, I find that the applicant has established a breach of ss. 8 and 9 of the Charter on a balance ofprobabilities. II. Analysis A. Onus – Charter Application [6] The applicant bears the onus on a balanced of probabilities concerning the s.9 Charter complaint.

As there was a warrantlessseizure of breath samples in this case, the Crown respondent accepted the burden of establishing the reasonableness of the search: R. v.Haas (2005), (ON CA), 76 O.R. (3d) 737 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 423; and R. v. Bush,2010 ONCA 554, at para. 13. B. Credibility and Reliability on the Charter Application [7] Both the applicant and his girlfriend testified that the applicant was handcuffed while awaiting the arrival of the ASD. Both PCBint and PC Golias testified that the applicant was not handcuffed until he was arrested after failing the ASD.

There are no sources ofindependent objective evidence (e.g. video capture). This application is therefore resolved on the basis of the onus and findings withrespect to credibility and reliability. [8] At the outset, it is important to emphasize that this is an application – not a trial. With respect to the assessment of credibilityissues on the Charter application, the principles pronounced in W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) do not apply. The guilt or innocence of the applicant is not being determined and the criminal standard of proof does not apply: (See the reasoning inF.H. v.

McDougall, 2008 SCC 53; R. v. Ram, 2014 ONCJ 788; R. v. Korzh, 2015 ONCJ 738; and R. v. Khan, 2012 ONCJ 130. [9] The evidentiary record produced by the applicant must persuade me on a balance of probabilities that his version of the eventsare to be preferred. Simple preference of the applicant’s evidence is sufficient. If I prefer the evidentiary record presented by theapplicant, on this record, I would be endorsing a finding that his detention was arbitrary – he was handcuffed prior to the arrival of theASD. If I was not persuaded on a balance of probabilities I would be obligated to dismiss the application.

Finally, if after considerationof the record produced by the applicant and respondent I could not determine what version I prefer, or I was unable to come to aconclusion, then I would be obligated to dismiss the application as the applicant would not have met the onus. C. Evidence called by the Respondent [10] The respondent called investigating officer PC Bint and his partner PC Golias. With respect to the police witnesses, there is nospecial rule of enhanced weight simply because of their employment as police officers: (See the reasoning of Durno J. in

summaryconviction appeal R. v. Steenson, 2015 ONSC 2160 at paras. 31-33) [11] Admittedly, at times, police training and experience may be considered by the court when evaluating evidence (e.g. consider forexample the assessment of reasonable and probable grounds). But in this case the narrow credibility issue concerning handcuffing doesnot rely on police training and experience. No justification was advanced by either police witness that would import this consideration.

D. Arbitrary Detention: Handcuffing – s. 9 of the Charter [ 12 ] There appears to be broad agreement in caselaw that unreasonable or unwarranted handcuffing of investigative detainees subject to a drinking and driving investigation is a breach of ss.8 and 9 of the Charter. Many courts have found a breach and excluded breath readings: R. v. Virk , 2018 ONCJ 752 , at paras. 53-59 ; R. v. Mahipaul , 2018 ONCJ 339 , at paras. 18-19 ; R. v. Orde , 2017 ONCJ 822 , at para. 12 ; R. v. Romaniuk, 2017 ONCJ 235 , at paras. 39-53 ; R. v. DiMaria, 2012 ONCJ 358 , at para. 27 ; and, R. v.

Whyte, 2009 ONCJ 389 , at paras. 15-20 . [ 13 ] I need not belabour the analysis as to why courts have reached this conclusion for two reasons. First, the respondent concedes that if there is such a finding, it is a breach of ss. 8 and 9 of the Charter and the evidence should be excluded. Second, my colleague in this jurisdiction B. M. Green J., has recently provided a comprehensive review of this issue in R. v. Ramnath , 2018 ONCJ 853 , at paras. 36- 40 . I simply adopt the excellent analysis provided. E. Driving Observations and the Traffic Stop [ 14 ] The road conditions were poor.

There was heavy snow falling. Two snow plows were plowing Taunton Road just ahead of the police and the applicant vehicles. [ 15 ] PC Bint testified that the applicant was meandering in his lane on Taunton Road such that his vehicle was fully one-quarter across the dividing lane marking a left turn lane. He further testified that when the applicant came to a stop on the side of the road his vehicle hit the curb. [ 16 ] The reliability of PC Bint’s testimony was impacted in this area.

He maintained his testimony that the applicant’s vehicle was fully one-quarter into the left turn lane in the face of cross-examination showing that he specifically noted that the applicant’s vehicle was driving on top of the lane marking. He did not note that the vehicle was one-quarter into the left turn lane. PC Bint maintained the unlikely position that the lane markings were clearly visible notwithstanding the heavy snow and the presence of two snow plows. PC Bint testified that the snow accumulation did not impact the applicant’s vehicle movements.

Both the applicant and PC Golias reasoned that there could have been an impact. Finally, PC Bint testified that the applicant’s vehicle hit the curb when it came to a stop. PC Golias did not testify to this relevant observation in a drinking and driving investigation. The applicant’s denies this happened. There is no evidence that PC Bint investigated the applicant for impaired operation or questioned the applicant about hitting the curb. The applicant was not charged with impaired operation. Finally, I question whether the curb was clearly visible given the immediate passing of two snow plows. F.

Sidewalk [ 17 ] PC Bint testified that once the applicant got out of the vehicle he conducted his investigation on a nearby sidewalk. He testified that the ASD demand was communicated from the sidewalk area which I find to be approximately 10-15 feet away from the roadway across a boulevard. [ 18 ] The reliability of PC Bint was tested again in this area of evidence. [ 19 ] PC Golias was clear that PC Bint’s investigation happened proximate to the vehicles at the side of the road and not on the sidewalk.

PC Golias testified that the applicant was never brought to the sidewalk although in cross-examination he conceded it was “possible”. Both the applicant and his girlfriend say he was investigated on the road near the curb between the vehicles. [ 20 ] According to PC Bint, the ASD demand was near the sidewalk or on the sidewalk south of the traffic stop. PC Golias could not recall where the demand was made but thought it was in the rear of the police cruiser. PC Bint had no specific notation in his notes of attending the sidewalk area. There was no investigatory need to attend the sidewalk area.

There would have been no need to go up through the freshly plowed snow to the sidewalk. I believe that PC Bint is mistaken in this recollection. G. ASD [ 21 ] The most notable and concerning evidence on the application was PC Bint’s testimony about the ASD instrument. On his testimony, after the formation of the requisite suspicion, he flowed seamlessly through to the administration of the ASD. Specifically, he testified that he personally went to his trunk and secured the ASD. He provided the particulars of the ASD. I am convinced that PC Bint is mistaken on this fundamental issue.

I believe that an ASD was delivered to the scene by another officer. [ 22 ] I have concerns about the reliability of PC Bint’s testimony. First of all, defence counsel requested that PC Bint’s notes be filed as an exhibit. This unusual action was requested so that the Court could see the specifics of the officer’s notations as compared to his viva voce evidence. It is notable that overall, PC Bint’s notes reflect a seamless transition from the traffic stop, to the formation of grounds, the ASD demand, and finally the administration of the test.

Thus, his notes are in keeping with his viva voce testimony. [ 23 ] During cross-examination, defence counsel put to PC Bint that he never had an ASD and in fact he had to arrange for one to be delivered to the location. This was important not only because of the potential Charter implications associated with a delay in the arrival of the ASD, but because the officer never testified to this circumstance, and it is not reflected in his police notes. PC Bint initially maintained his position that he had personal possession of an ASD.

But when confronted with cross-examination sourced in PC Golias’ notes, he ultimately conceded that it was possible that an ASD was delivered to their location. [ 24 ] PC Golias, the applicant, and the applicant’s girlfriend all testified to the fact that there was a short delay while they waited for the delivery of an ASD to the traffic stop location. This was a manifest change in the prosecution’s case. PC Bint did not note who requested an ASD. He did not note the time it was requested. He did not note who delivered the ASD. He did not note the time that it

arrived. He did not note any administration of rights to counsel while awaiting the arrival of the ASD. PC Bint did not have a note in his notebook at the beginning of his shift detailing the particulars of any ASD he might have been equipped with. But, he testified that he does not have a general practice of noting down his ASD at the beginning of his shift. He had no note of conducting a self-test on the ASD. [ 25 ] The wholesale shift in PC Bint’s evidence was a significant reliability concern. I find that he was wrong – an ASD was indeed delivered to the scene by another officer.

I reject PC Bint’s specific testimony that he obtained the ASD from his trunk. Given that his specific recollection bolstered by his notes is manifestly unreliable, I questioned the reliability of all of his evidence. If he was wrong on this core significant issue, why would I believe him to be accurate about where, how, and in what manner, the applicant was detained, pending the arrival of the ASD. H. Handcuffing [ 26 ] PC Bint testified that the police SUV was directly behind the applicant’s vehicle. He did not acknowledge that the vehicle was offset towards the roadway slightly for officer safety reasons.

PC Golias testified that the police cruiser was slightly offset for officer safety reasons. [ 27 ] PC Bint did not have a specific note of placing the applicant in the rear of the police SUV such that his legs were allowed to remain outside of the door. Nevertheless he was clear that he only handcuffed the applicant to the rear after he failed the ASD and was arrested.

Thereafter the applicant was placed in the rear of the police vehicle and rights to counsel, caution, and the breath demand were provided. [ 28 ] PC Golias says the applicant was placed in the rear of the police SUV while awaiting the arrival of the ASD from the nearby police division. He observed the applicant’s feet sticking out of the passenger side seat. After he registered a fail, PC Golias testified that he was removed from the rear of the police SUV, told to turn around, and handcuffs were applied.

This was all as he was being placed under arrest. [ 29 ] The applicant testified that he was asked to step out of his vehicle and accompany PC Bint to the curb area just in front of the passenger side of the police vehicle. He was told that he would be required to provide a sample of breath and he was asked to wait a few minutes for the arrival of the ASD as it was close by. He was handcuffed and placed in the rear seat of the police vehicle closest to the curb (passenger rear). He testified that PC Bint assured him it would not be long and that the ASD was on the way.

While sitting in the back, handcuffed to the rear, the positioning was such that he had to maneuver his legs out the open door to release the pressure on his hands. This was because of his large frame (six feet tall and 230 pounds). In particular, the right handcuff was tight on his wrist bone. The applicant testified that he did not complain or challenge PC Bint concerning the handcuffing because he did not believe it was appropriate to challenge the police in this manner and that the police had the power. [ 30 ] The ASD arrived three or four minutes later.

PC Bint asked him to scoot forward and maneuver up on his seat. Thereafter, PC Bint put the instrument in his mouth and required him to provide the sample. PC Bint told him he failed and also showed him the non- numerical result. [ 31 ] The applicant’s girlfriend testified that the applicant was handcuffed near the passenger side of the car and then placed in the rear passenger side of the police SUV with the door open. She watched all of this occur from her vantage point in the vehicle through the use of the car mirrors.

She was not able to confirm or deny if the defendant got out a second time because after he was handcuffed and placed within the police vehicle she did not wish to watch any further. I have no note of either counsel asking PC Bint specifically on which side of the rear seat the applicant was placed. But the applicant, his girlfriend, and PC Golias all testified that it was the passenger side rear.

I am satisfied that the applicant’s girlfriend was in a position to make this observation. [ 32 ] While I acknowledge that the applicant has an interest in the outcome as does his girlfriend, I am convinced that he is telling the truth about being handcuffed while waiting for the arrival of the ASD. The detail he provided about the application of handcuffs and the provision of the breath sample while handcuffed was highly probative. PC Golias corroborates the fact that the applicant was kept in the rear passenger side seat of the police SUV with his feet outside while awaiting the arrival of the ASD.

The applicant’s girlfriend saw him handcuffed and placed in the passenger side rear of the police SUV and also saw another officer attend to deliver the ASD. III.

Summary of Credibility and Reliability Findings A. The Applicant [ 33 ] I found the applicant to be credible overall. The applicant is a 25 year old young adult working two jobs. He has no criminal record. He had never been stopped by the police before for any reason. He testified clearly and convincingly on the core issue – the circumstance of being handcuffed. This was a unique experience for him punctuated by his wrist bone being compacted on one hand and the fact that he had a visceral reaction after being arrested – dry heaves.

I had a mild, but unimportant, reliability concern associated with his perception that he was told he had been arrested for “impaired driving”. I do not find that PC Bint told him he was arrested for “impaired driving”. He was not arrested for impaired driving but inferred that he was arrested because of his alcohol consumption and driving. Most laypersons would draw the same conclusion. B. The Applicant’s girlfriend [ 34 ] I found the applicant’s second witness to be credible overall. The evolution of her relationship with the applicant from friend to

partner presented an obvious concern of bias. But she testified clearly and convincingly on the core issue of handcuffing. Furthermore, she was in a position to observe the placement of the applicant in the rear of the police cruiser. C. PC Bint [ 35 ] PC Bint was a professional police officer that night. Apart from the handcuffing he treated the applicant properly as one would expect from a police officer. The applicant was polite and cooperative and presented no issue for the police officers. [ 36 ] I found PC Bint to be generally unreliable as a witness.

I should carefully note that I did not find him to be deliberately lying or attempting to mislead the Court. He simply lacked sufficient detail in his independent recollection. He was dependent on his notes. He did not note important events. At the time of this investigation PC Bint had just over two years’ experience. To be totally frank, it would not be surprising for an inexperienced officer to fail to recognize the impact of the handcuffing issue. The applicant was detained. The officers were responsible for him.

I am concerned that the significance of handcuffing prior to arrest was lost on PC Bint at the time of the investigation. [ 37 ] Police officers make notes to refresh their recollections. Notes are prepared in different ways with varying levels of detail. The presence or absence of a detail does not conclusively determine the factual inquiry. I believe that PC Bint was testifying from an honest subjective belief or recollection.

But his evidence is unreliable. [ 38 ] PC Bint’s notes, testimony, and independent recollection suggest a seamless investigation and that he was in personal possession of an ASD retrieved from the trunk of the SUV. His notes are written as if he was in possession of the ASD. His notes convey a circumstance where there was no delay associated with the arrival of the ASD. His notes do not disclose that he turned his mind to the administration of rights to counsel while awaiting the arrival of the ASD.

His notes do not specifically speak to how he maintained custody and detained the applicant while awaiting the arrival of the ASD. [ 39 ] Some officers note down the particulars of the ASD they secure. Still other officers conduct a self-test at the start of their shift and note the particulars as it is relevant to their subjective believe in the functioning of the instrument. PC Bint testified that he had no note of having an ASD at the start of his shift and that he was not his general practice to note down the particulars.

PC Bint also testified that it was not his normal practice to note down the equipment he left the division with in this manner. [ 40 ] Overall, PC Bint’s testimonial reliability was compromised by: (1) his evidence premised on his notes, (2) the observations of the applicant’s vehicle, (3) his testimony that the investigation occurred proximate to a nearby sidewalk; and; (4) his illogical testimony about obtaining insurance documents and registration from the applicant; (5) his lack of consistent note taking concerning the time of the demand (1:06 or 1:07 AM); and (6) his evidence about personal possession of an ASD.

D. PC Golias [ 41 ] This officer testified that he was 100 per cent sure that the defendant was not handcuffed prior to being placed in the police SUV. I believe that PC Golias is credible but slightly unreliable. [ 42 ] He was not the investigating officer nor directly responsible for the investigation. He testified that he was focused on the passenger in the applicant’s vehicle.

He was described by PC Bint as being a newer hire being “escorted” by PC Bint (which I took to be some form of training) so he was not an overly experienced police officer despite his short time with the Toronto Police Service. [ 43 ] I think it is unlikely that he drew significance from the act of handcuffing while awaiting the arrival of the ASD. He has no notes concerning the timing of handcuffing. [ 44 ] It is not unusual for these Courts to hear less detail from an accompanying police officer – one not charged with the responsibility associated with being the primary investigator.

When one is not the primary investigator the level of detail and memory of events is sometimes lacking. I found PC Golias’ testimony to resemble the testimony of some of those secondary police officers. His memory was not very clear on many issues. He equivocated and could not recall where the ASD demand was read (he was not 100% sure and did not want to guess) but he was almost certain it was in the backseat of the police SUV). He does not recall if he called for the delivery of the ASD or PC Bint.

While he was clear that no investigation occurred on the sidewalk during his direct testimony, during cross-examination he testified it was possible. He had no notes concerning the issue of handcuffing. He did not note how long it took for the ASD to arrive. [ 45 ] The reliability of PC Golias was impacted sufficient enough for me to question his clear positive memory of that which he did not note down – the precise timing of handcuffing. I do not endorse defence counsel’s submission that his evidence evidenced collusive bias in support of his partner.

I believe it is simply symptomatic of his secondary involvement in the investigation and the resultant impact on his reliability. IV. Remedy [ 46 ] The parties did not dispute the availability of a s.24(1) Charter remedy in this case. The respondent conceded that if the Court found that the applicant was handcuffed prior to arrest, the evidence of the breath readings should be excluded per s.24(1) of the Charter . Having regard to a broad, purposive, and generous

interpretation of the s.24(1) Charter remedy, I am satisfied to accept this concession given there is no less intrusive remedy available to “. . . safeguard the fairness of the trial process and the integrity of the justice system.”: R. v. Bjelland , 2009 SCC 38 , at para. 19 ; R. v. 974649 Ontario Inc ., 2001 SCC 81 , at para 24 . [ 47 ] The breath reading results are excluded.

V. Disposition [ 48 ] The defendant is found not guilty Released: February 12, 2019 Signed: “Justice M.S. Felix”