2010 QCCQ 12894, 2010 QCCQ 12894

Mathie c. R. 2010 QCCQ 12894 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TEMISCAMINGUE TOWN OF VILLE-MARIE Criminal & Penal Division No: 610-01-004850-099 DATE: December 6, 2010 ______________________________________________________________________ BY THE HONOURABLE NANCY McKENNA, J.C.Q. ______________________________________________________________________ LAURI MATHIE Accused - Applicant v.

HER MAJESTY THE QUEEN Prosecutor - Respondent ______________________________________________________________________ JUDGMENT ON A MOTION FOR THE EXCLUSION OF EVIDENCE ( Sections 8 , 9 and 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] At the outset of the trial, the defence presents a motion to exclude the evidence under section 24(2) of the Canadian Charter of Rights and Freedoms on the grounds that the rights of the applicant under sections 8 and 9 of the Charter were violated. [ 2 ] The applicant is charged with one count of impaired driving and one count of operating a motor vehicle while the concentration of alcohol in her blood exceeded the legal limit.

QUESTIONS IN DISPUTE [ 3 ] The main question raised by the motion is whether the police stop of the applicant's motor vehicle was lawful. [ 4 ] In the event the Court rules the accused's rights under sections 8 and 9 of the Charter were violated, should the evidence obtained be excluded under section 24(2) of the Charter ?

THE FACTS [ 5 ] On September 7, 2009, police officers Dumont and Godbout are working the night shift on the Harfang operation, which consists of patrolling by the Sûreté du Québec within the native community of Winneway and the eastern Temiscaming region. [ 6 ] At 20:57, as both officers are patrolling east bound on the road between the municipalities of Laforce and Moffet, officer Dumont sees at approximately 200 meters ahead, two headlights placed diagonally. One light is close to the central line and the other is closer to the exterior line of the road.

At this hour, it is dark outside and officer Dumont believes those two headlights might actually be the lights of quad bikes. [ 7 ] At the beginning of their shift, both officers' were informed by a sergeant that quad bikes had been stolen in Val-d'Or the previous night. The information also mentioned that the stolen vehicles could possibly be found in the Winneway area.

The police had no other information as to the number of stolen vehicles, the description of the vehicles or license plates numbers. [ 8 ] In any event, officer Dumont decides to pull over on the side of the road and activate the emergency lights of the patrol car before crossing the vehicles. By doing so, she figures that if the vehicles are stolen quad bikes, the odds are that the drivers will not stop and that a pursuit is to be expected. [ 9 ] Once close enough, officer Dumont notices that the two vehicles are in fact motorbikes. From her rear-view mirror she sees the motorbikes puling over.

She makes a U-turn and decides to go intercept both drivers. [ 10 ] Officer Dumont goes towards the applicant, driver of one of the two motorbikes. For his part, officer Godbout meets with the driver of the second motorbike, the applicant's life partner. Officer Dumont asks the applicant to show proof of insurance, registration and driver's license. She soon realizes that the applicant, who speaks English, has alcohol on her breath. In order to get a hold of the documents required by the officer, the applicant must go towards her partner's motorbike.

She provides the documents to officer Dumont who notices, at that point, the persistent odour of alcohol coming from the applicant's breath. Officer Dumont informs the applicant of her observations. The applicant denies having consumed any alcoholic beverages. According to officer Dumont, the applicant staggers lightly as she walks and has glassy eyes. The officer then gets the approved screening device in the patrol car and orders the applicant to provide a sample of breath. Again, the applicant maintains she didn't drink any alcohol. Wanting to prove her sobriety, she goes in the

middle of the road and starts to walk on the line separating both sides of the road. Officer Dumont must grab Ms Mathie by the arm and bring her back on the side of the road. She then reads to the applicant the alcohol screening device breath demand. After six attempts, Ms Mathie provides a proper breath sample into the approved screening device, which a ''fail'' registers. She is then put under arrest for impaired driving and brought to the police station where two-breathalyser tests are administered.

The applicant readings are respectively 134 and 130 milligrams of alcohol in 100 millilitres of blood. [ 11 ] In cross-examination, officer Dumont is questioned at length as to the reasons and under which authority she stopped the motorbikes. The officer admits realizing before driving behind the vehicles that they were not quad bikes, but in fact motorbikes.

When asked why she stopped the applicant's motorbike, officer Dumont maintains that the first idea was to stop the vehicles because she thought they might be stolen quad bikes. [ 12 ] Confronted with the fact she knew the vehicles were not quad bikes before driving behind them, officer Dumont states it was self-evident she was going to see the drivers and ask them to provide the necessary documents, since the motorbikes had stopped. Questioned further, she adds that once she parked the patrol car behind the motorbikes, she noticed they had Ohio State license plates.

Accordingly, she wanted to check if the drivers had valid registrations, insurance and driver's licenses. [ 13 ] For his part, officer Godbout also testifies that the first reason for stopping the vehicles was to check if they were stolen quad bikes. After realizing they were not quad bikes, the officer states that the purpose of the verification was to check the driver's licenses, registrations, insurance and also make sure the type of motorbikes could legally be on the road. In his mind, in order to be allowed to drive on a public road the motorbikes must be equipped with flashers and side mirrors.

However, he cannot acknowledge if both motorbikes had those accessories. Later in cross-examination he admits that he noticed the flashers on both motorbikes when pulling over on the side of the road. He also admits that his partner and him decided to go see the motorists since they had already stopped. THE LAW [ 14 ] Sections 8 & 9 of the Canadian Charter of Rights and Freedoms read as follow: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 15 ] In R. v.

Grant , [1] the Supreme Court re-examined the issue of detention and defines it as being the suspension of one's liberty interest by a significant physical or psychological restraint. There is psychological detention when an individual has a legal obligation to comply with a restrictive request or demand, or that a reasonable person would conclude that she or he had no choice to comply considering the conduct of the representative of the state. [ 16 ] Accordingly, an individual's freedom cannot be impinged upon police forces unless authorized by law or common law. [ 17 ] As stated at

section 48 of the Police Act , [2] the general mission of various police forces in Quebec is to maintain peace, order and public security, to prevent and repress crime. [ 18 ] Nevertheless, the police powers and obligations do not permit police to use unlimited measures to carry out other duties. As mentioned by the Supreme Court in R. v.

Mann , [3] police powers and duties are not necessarily correlative. [ 19 ] Over the years, through different cases, common law has recognized limited powers to police officers to detain for investigative purposes. [ 20 ] Detention for investigative purposes as established in Mann [4] can be summarized as follows: 1) Police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all circumstances that the individual is connected to a particular crime. 2) The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances informing the police officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. [ 21 ] As to the operation of a motor vehicle, in R. v.

Hufsky [5] and R. v. Ladouceur , [6] the Supreme Court of Canada decided that although the random stop of a motorist constitute an arbitrary detention, it is justified under

section 1 of the Charter . [ 22 ] As stated by the highest Court of the country, the purpose of such legislation is to be able to achieve safety on the highways and random stops are the only way to provide such safety. [7] [ 23 ] In Quebec, the legislative authority that allows such random stops of motor vehicles is found at

section 636 of the Highway Safety Code: [8] Every peace officer recognizable as such at first sight may, in the performance of his duties under this Code , agreements entered into under

section 519.65 and the Act respecting owners, operators and drivers of heavy vehicles (chapter P-30.3 ), require the driver of a road vehicle to stop his vehicle. The driver must comply with this requirement without delay. [ 24 ] Thus, the Court of Appeal in R. v. Soucisse [9] ruled that

section 636 of the Highway Safety Code was constitutionally valid. Moreover, the Court of Appeal was of the opinion that

section 636 gives legislative authority to police officers to stop motorist for the purpose of verifying driver's license, registration, insurance, mechanical condition of the motor vehicle as well as the power to verify the sobriety of the driver. [ 25 ] As to the limits of such roving stops, the late judge Steinberg specifies the following:

I hasten to add that the power to arbitrarily stop a motor vehicle for verification is limited by the purpose to the stop and is only legislatively based if done by a police officer in the performance of his duties under the Highway Safety Code . Hence, a random spot check of motor vehicles to check for stolen goods or drugs would not be legislatively justified under this provision. [10] [ 26 ] Accordingly, highway safety concerns cannot provide the means to pursue other objectives such as a criminal investigation.

It is settled law that statutory power to stop a motorist for highway traffic purposes cannot validly be exercised for a different purpose entirely. [11] [ 27 ] When the law is applied correctly, there is a balance between individual liberty and the societal goal aimed at reducing the terrible toll of death so often occasioned by dangerous vehicles. [ 28 ] Regarding the application of section 24(2) of the Charter , the Court must adopt the revised approach set forth by the Supreme Court in R. v.

Grant . [12] [ 29 ] Accordingly, the Court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, (3) society’s interest in the adjudication of the case on its merits. [ 30 ] At the first stage, the Court must evaluate the seriousness of the breach. The more severe and deliberate the conduct by the state of authority, the greater the need for the Court to dissociate itself from such conduct.

The goal being to ensure state adherence to the rule of law. Thus, ignorance or disregard for Charter standards must not be rewarded and cannot amount to good faith. [13] [ 31 ] The second branch focuses on the seriousness of the impact of the breach on the protected interests of the accused. [ 32 ] Thirdly, the Court must ask itself whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.

The immediate public request for a conviction must not distract the judge from the long- term repute of the administration of justice. [ 33 ] Thus, the rule established in Stillman [14] by which conscriptive evidence was generally inadmissible is replaced by a less rigid test, which consists on examining all the circumstances. APPLICATION TO THE CASE AT BAR [ 34 ] When the emergency lights were activated, it is not disputed that both officers were carrying out there powers under the common law and not under the Highway Safety Code .

Officer Dumont clearly states that she believed, based on the position of two headlights, that the vehicles in the other lane were quad bikes. Not only couldn’t she see what type of vehicles they were, she had no information to suspect that the drivers were involved in a criminal activity nor did she know how many quad bikes had been stolen. Moreover, she had no description whatsoever of the said vehicles. [ 35 ] There was no glimmer or reasonable grounds to suspect that the applicant was connected in the theft of a quad bike as she was driving a motorbike.

In fact, it is surprising that the police officer would actually consider having the necessary grounds to suspect that the applicant could be involved in the theft of a quad bike based solely on the position of two headlights. [ 36 ] From the evidence heard, it is obvious that by turning the emergency lights on, thereby ordering the applicant to stop her motorbike, officer Dumont wasn’t in the performance of her duties under the Highway Safety Code .

She was investigating a possible theft and not enforcing road safety matters. [ 37 ] Turning to officer Dumont’s testimony, the Court is of the opinion she wasn’t forthright about the reason she stopped the motor vehicles. At first, she maintains it was to check if they were stolen quad bikes, even after realizing they were in fact motorbikes. When questioned more directly by defence counsel, officer Dumont’s testimony evolved constantly as to why she detained the applicant. This seriously affects her credibility.

She states, among other reasons, it was obvious she was going to see the drivers of the motorbikes, since they had stopped. Later, she adds it was to verify the drivers' documents. Lastly, it was because she realized both motorbikes had Ohio license plates and she wanted to make sure the drivers had the necessary papers. [ 38 ] The use of the emergency lights was a clear demand made to the applicant and her life partner to stop their motorbikes. The applicant complied with the restrictive request.

On this point, the Court is of the opinion that a reasonable person placed in the same circumstances as the applicant would conclude he or she had no choice but to stop their motor vehicle. [ 39 ] The preponderant evidence shows that officer Dumont misused her power to detain for investigative purposes by ordering the applicant to stop her motorbike. The evidence also shows she decided to go check the applicant’s papers once she realized there were no longer any grounds to pursue a criminal investigation.

Furthermore, at that point in time, there were no grounds to believe that the applicant had committed an offence under the Highway Safety Code . Consequently, when she required the drivers to stop their motorbikes she wasn’t carrying out her duties under the Highway Safety Code, therefore also misusing the powers provided by

section 636 of the said Code. [ 40 ] The Court concludes that the officers didn’t have reasonable suspicion to believe that a criminal offence had been committed, nor was the stopping of the motorbikes done for a valid reason as set out in the Highway Safety Code. Accordingly, the applicant was detained in violation of

section 9 of the Charter and that evidence was thus obtained in violation of

section 8 of the Charter .

REMEDY [ 41 ] The Court must now determine if the blood samples should be excluded under section 24(2) of the Charter in light of the criteria established by the Supreme Court in R. v. Grant , [15] as previously outlined in the law

section of the present judgment. [ 42 ] As to the seriousness of the breach, it must be considered important. The Court found that the officers misused not only their power to detain for investigative purposes, but also their power for random stop-checks under the Highway Safety Code . In the case at bar, the decision to check the validity of the applicant's documents was made only after realizing that no criminal investigation could be pursued. There was nothing random about the stop.

Furthermore, it is important to add that the only reason why the applicant was detained is because the police activated the emergency lights based solely on the position of the headlights. This cannot even be considered as a hunch. In the circumstances, the Court considers the police actions as a disregard of Charter standards concerning detention. [ 43 ] Moreover, officer Dumont's obvious difficulty in explaining the reason for stopping the applicant’s vehicle shows her misunderstanding of her powers of detention for investigative purposes as well as under the Highway Safety Code .

Since detention for investigative purposes and detention for highway safety reasons answer to different criteria, it is of the outmost importance that police be able to properly articulate the reasons of their actions when detaining a motorist. The Court considers that such misuse of well-settled principles amounts to disregard the Charter rights concerning detention and that such behaviour cannot be condoned. [ 44 ] Regarding the impact of the breach on the Charter-protected interests of the accused, here it led to incriminatory evidence, samples of the accused’s breath being obtained.

The interests protected are the right to circulate freely and to be free from unreasonable search or seizure. Without the stop of the applicant’s motorbike, it is arguable that the evidence would never have been obtained. [ 45 ] Of course, society has an interest in the adjudication of any case on its merits. The question is one of breathalyser evidence, which is normally reliable and crucial for the prosecution's case.

However, these factors must be weighed against other important considerations. [ 46 ] In the present case, there is necessity to disassociate from police actions by which the applicant’s vehicle was stopped on a mere suspicion, which led to the misuse of another law. The Court is of the opinion it must distance itself from the precipitous judgment by the police officer to stop the applicant’s motorbike, which led to a significant incursion on the applicant’s rights.

Finally, the interests of society in the ''truth-seeking'' process are outweighed by the long-term negative effect on the repute of the administration of justice. [ 47 ] FOR THE REASONS, THE COURT: [ 48 ] GRANTS the motion under sections 8 and 9 of the Charter ; [ 49 ] ORDERS the exclusion of evidence under section 24(2) of the Charter . __________________________________ NANCY McKENNA, J.C.Q. Mtre. Jean-François Lacasse Lawyer for the accused - applicant Mtre. Yanick Massicotte Criminal and penal prosecuting attorney Lawyer for the prosecutor - respondent Date of hearing: October 27, 2010