R. v. Bouchard, 2011 ONCJ 610

COURT FILE No.: Kenora 110260 DATE: 2011·11·24 Citation: R. v.

Bouchard , 2011 ONCJ 610 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Mandy Patricia Bouchard Before Justice Donald Fraser Heard on July 11, 2011 Preliminary Reasons for Judgment Released on September 1, 2011 Final Reasons Released on November 24, 2011 Carl O’Brien ............................................................................................................. for the Crown Irwin Isenstein ................................................................. for the accused Mandy Patricia Bouchard Fraser J.: [ 1 ] What are the implications of the police putting Mandy Bouchard in a detachment cell before, between and after her two evidentiary breath samples?

Four questions emerge. 1. Was Ms. Bouchard unreasonably detained after completing the evidentiary breath sampling to an extent that it constituted a breach of her s.9 Charter rights to be free of arbitrary detention and if so, is there any meaningful remedy? 2. Did the second evidentiary breath sampling meet the statutory requirement that it be taken as soon as practicable (s.258(1)(c)(ii) of the Criminal Code)? 3. Were Ms. Bouchard’s Charter rights breached by placing her in a cell before and between the breath sampling and if so is she entitled to a remedy under s. 24(2) of excluding the breath results? 4.

Were Ms. Bouchard’s s.8 Charter rights breached by a search and seizure before she was placed in the cell before the first breath sample? If so, is she entitled to have the breath results excluded? FACTUAL OVERVIEW [ 2 ] Ms. Bouchard testified that after completing her 8 hour shift as a bartender, she remained at the bar and consumed 4 glasses of wine before driving home. Constable Jacko followed her and pulled her over. He detected “a small hint” of alcohol odour on her breath and made a screening device breath demand.

He “was really surprised” when she failed. [ 3 ] He transported her to the Kenora Ontario Provincial Police detachment for an evidentiary breath sampling.

She was appropriately not cuffed during this trip. [ 4 ] At the detachment she was placed into a cell and went through the process of removing her bra, a required police procedure. [ 5 ] She consulted counsel and refused to provide any statements pursuant to that legal advice. [ 6 ] Constable Mouland, the breath technician, advised that after the first sample was taken, it is his practice to complete the alcohol influence report while waiting the mandatory 15 minutes before taking the second sample. In this case, when Ms. Bouchard refused to answer any questions, he terminated the interview and returned Ms.

Bouchard to the cells to wait. [ 7 ] After the testing was completed the officers worked on paperwork. The evidence is somewhat vague but Constable Jacko agrees that by 2:00 a.m. the paperwork was ready. [ 8 ] He did not release Ms. Bouchard until 5:00 a.m. because it is his practice to hold charged impaired drivers so that once released, “such persons are capable of making good decisions.” He noted that sometimes people charged with impaired driving charges

commit suicide shortly after release. [ 9 ] He agreed that he held onto all the charged impaired drivers in this way. He admitted that he did not explain to Ms. Bouchard why she was kept in the cells after completing the breath test. FACTS NOT IN DISPUTE [ 10 ] The following facts are undisputed: - At the time of first contact with the arresting officer, Ms. Bouchard’s indicia of impairment were slight to non-existent.

The only basis for the officer’s evidentiary breath demand was the fail on the screening device, a result that “really surprised” the officer. - She posed no threat to officer safety and was not cuffed for the ride to the detachment for the evidentiary breath sampling. - She was then put into cells and subjected to the procedure of removing her bra and surrendering it to the police along with other personal items. No explanation has been offered as to why this was necessary in Ms.

Bouchard’s circumstances. - After she gave the first breath sample, she refused to participate in the alcohol influence interview based on legal advice she received. She was returned to the cell to wait for the second test. The first test was complete at 12:14, she was returned to the cell at 12:21 and the second test was complete at 12:40. - Once the breath sampling was completed, she was again returned to the cells while the officers worked on their paperwork. This paperwork was ready by 2:00 a.m.

She remained in the cells until 5 a.m. pursuant to Constable Jacko’s policy for dealing with persons charged with drinking and driving offences. No explanation has been offered as to why this was justified as necessary or appropriate in the circumstances of this accused person. DETENTION AFTER BREATH SAMPLING [ 11 ] The Defence made this issue the focus of the trial defence and I issued a preliminary decision on September 1, 2011 finding that Constable Jacko’s policy to detain in cells all persons charged with drinking and driving offences is clearly arbitrary and untenable considering Ms.

Bouchard’s individual circumstances. I found that he breached her s.9 Charter rights as a result. The real challenge with this finding – what is the remedy?

The breath sampling had been completed at the point when the breach commenced and therefore the usual exclusion of evidence remedy under s. 24(2) of the Charter of Rights cannot be available. [ 12 ] The express statutory wording in s.24(2) imports a causal/temporal linkage, for the court must conclude “that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter .” [ 13 ] The recent authoritative Supreme Court of Canada decision on point is R. v.

Grant [1] which reiterates in paragraph 69: “. . . (section 24 (2)) seeks to ensure that evidence obtained through that breach (of charter rights) does not do further damage to the repute of the justice system.” [ 14 ] In my view, I am bound by the Court of Appeal decision in R. v. Iseler [2] that involved a very similar but not identical fact situation. In Iseler , the driver was placed in cells after completing breath sampling and left there for 11 hours. The Court of Appeal found that a charter breach was established but agreed with the trial judge and the

summary conviction appeal judge that because the breach had nothing to do with the investigation and the gathering of evidence, it did not impact trial fairness. A stay of proceedings or an acquittal would not be an appropriate remedy. [ 15 ] Although not made explicit, the Court of Appeal clearly saw no merit in considering a remedy under s.24(1) of the Charter . Mr. Isenstein submits that the decision R .v. Coghlan [3] , unreported and uncited, can support the crafting of a creative remedy under s.24(1). I am not persuaded.

Unlike the situation in Coghlan, the breach here does not involve any aspect of the breath sampling procedure or evidence gathering. USE OF DETACHMENT CELL INITIALLY [ 16 ] In my preliminary decision, I reluctantly came to the conclusion that I must ask counsel to make submissions in writing on aspects of this case not argued. It seemed to me possible that a court could frame the temporal ambit of the breach more broadly by focusing on the reasonableness of the police act of placing Ms. Bouchard in cells on her arrival at the detachment before the breath sampling. [ 17 ] Why was she placed in a cell?

She was co-operative, coherent, rational and posing no risk to officer safety. As a first offender, even if found guilty she would not face a jail sentence. Had she refused to provide a screening breath sample at the roadside, considering Constable Jacko’s findings that she was showing only the slightest signs of alcohol influence, she probably would have been charged and released at the roadside on a promise to appear. [ 18 ] Mr. Isenstein in his written submissions focused on the issue of search and seizure. Neither counsel directed submissions to the issue of placing Ms.

Bouchard in a cell on her arrival at the detachment, one of the key questions I asked them to address. I completely understand their failure to do so because it appears there are no reported cases on point. [ 19 ] Questioning the reasonableness of a police officer’s decision to place a suspected drunk driver in a detachment cell to await breath sampling will arise in a distinct minority of cases. As the qualified technician, Constable Mouland, put it in this case, Ms. Bouchard “was more polite than a lot of people”.

Most suspected impaired drivers are so drunk, so abusive that the reasonableness of the police decision to put the person in a cell while waiting for the breath test is self-evident. [ 20 ] I worry that another reason courts have not been asked to consider this question is that we, who are involved in the criminal

justice system, as police officers, lawyers or judges have been de-sensitized to the significance of the act of placing another human beingin a cage. But it is no trivial act, just because for us, it is common. [21] Placing another human being in a cage exacts a psychological toll on both the jailed and the jailer. Ms. Bouchard’s testimony inthis trial provided evidence of both impacts. She testified in a compelling way about her own sense of humiliation as she sat in the cell.

But, she also described the actions of a young female officer, uninvolved in her case, who passing her cell and seeing her huddled andmiserable, clutching a blanket around her shoulders to hide her bra-less state, said, “You look so comfortable, maybe we should keep youlonger.” [22] I would like to think this female officer would be upset to realize the impact of this remark on Ms. Bouchard. The officerprobably thought she was being funny. I dare say the guards at Abu Ghraib thought they were being funny too.

The jailed suffers thehumiliation and the jailer risks becoming de-sensitized to the humanity of the prisoner. [23] Is placing a person in a detachment cell prior to breath sampling “imprisonment” within the meaning of s.9 of the Charter? TheSupreme Court of Canada in R. v .Grant indicates that “imprisonment connotes total or near total loss of liberty” while “detention”merely requires “significant deprivation of liberty”. [24] What is arbitrary imprisonment? Again Grant indicates that a lawful detention cannot be arbitrary. But then notes that adetention based on reasonable suspicion is also lawful.

This analysis is said to “mirror” the framework developed for accessingunreasonable searches and seizures under s.8 of the Charter. A search authorized by law must be carried out in a reasonable manner.[4] [25] Does an arbitrary detention or imprisonment under s.9 encompass a lawful detention or imprisonment carried out in anunreasonable or unjustified manner? It seems that if s.9 is to receive a generous, purposive

interpretation, as it should as a constitutionalguarantee, then s.9 must be capable of providing oversight for lawful detention or imprisonment that is carried out in an unreasonable or unjustified manner. The Ontario Court of Appeal in R. v.

Cayer (1988) (ON CA), 66 C.R. (3rd) 30 at 43 stated that“an arbitrary detention for the purposes of these appeals is a detention which is capricious, despotic or unjustified.” [26] Grant interprets s.9 of the Charter so that detention and imprisonment describe a continuum of increasing deprivation of libertywith the terms overlapping (par. 34). [27] If I am correct that s.9 must encompass the capacity of a court to consider the nature or quality of the detention or imprisonmentin order to give s.9 a generous and purposive

interpretation, does this not inappropriately draw the courts into micro-managing policedecisions about the appropriate levels of restraint for detainees? [28] I recognize the problem but a consideration of the caselaw, particularly cases dealing with lengthy detentions after completionof evidentiary breath sampling, indicates that courts give appropriate deference to police decision making in this area.

So long as there issome evidence that police have directed their mind to the appropriate level of restraint on a case specific basis, there is no secondguessing a broadly reasonable decision. [29] What does invite redress from the courts is the application of blanket police policies divorced from a case specificconsideration. [30] One can glean from a survey of reported drinking and driving cases that not all police forces place suspected impaired drivers ina detachment cell before breath sampling. Surely justification for this highly intrusive act can’t be just that the cell is the detachmentwaiting room.

Justification should be rooted in a case specific consideration of what is required for officer safety and the orderlymanagement of the detachment based on the level of sobriety, the co-operation and the attitude of the detained driver. [31] If I am right in this regard, then Constable Jacko’s decision to place Ms. Bouchard in a cell before the breath sampling wasunjustified and a breach of s.9 Charter rights. [32] I recognize that this issue was not properly litigated. Counsel at trial did not consider the issue and therefore the record isinadequate. The officers were not questioned about this.

We don’t know if this was detachment policy or Constable Jacko’s individualapproach. [33] Further, counsel did not provide legal submissions on the point, although I asked them to do so. I understand why they did notaddress it. It appears to be novel. [34] In the result, considering the decisions I have reached on the other live issues in this trial, I do make a specific finding on thisissue. THE SEARCH AND SEIZURE [35] Mr. Isenstein, supported by ample caselaw, focused on the police requiring Ms.

Bouchard to surrender her bra as part of theirprocedure in lodging her in the detachment cell while she awaited breath testing. In his written submissions, he used the emotive phrase,“strip search” but this strikes me as unjustified. But it nevertheless was a highly intrusive invasion of Ms. Bouchard’s expectation ofprivacy. There is no evidence as to the details of what the police did or requested and based on Ms. Bouchard’s evidence, I assume thatshe was asked to remove her own bra and hand it over together with the other usual personal items before being placed in the cell.

TheCrown submits that this was a reasonable procedure to insure that Ms. Bouchard did not inflict self-harm while in the cell. [36] There is no suggestion that she was subjected to a skin or body cavity search. [37] The Supreme Court of Canada in R. v. Golden[5] and a number of reported decisions since, recognize that there is a differencebetween the short term detainee, like Ms. Bouchard who is being held in a detachment cell alone and a prisoner who likely or may bemixed into the general prison population. In the latter case, a strip search can be justified more easily to insure contraband is not

introduced into the prison population. On that analysis, recognizing that the seizure of the bra was done before breath sampling, thepolice could not assume that she would blow over to a degree that would justify any lengthy detention. It makes it unreasonable toassume that she would be in a cell long enough to justify removing articles that could be used to commit suicide. [38] The Defence submits that the seizure of Ms. Bouchard’s bra as part of a blanket policy, without considering her circumstancesrepresents an unreasonable violation of her expectation of privacy.

It constitutes a search as well as a seizure and breaches her s.8 Charterrights. [39] There is no evidence that the Ontario Provincial Police detachment in Kenora has in place a policy that reflects the decision inGolden, unlike the Metropolitan Toronto Police Force and other forces. Such policies require officers to assess the individualcircumstances of each prisoner before deciding on what level of intrusive search is justified. [40] In Golden, the majority takes note of the English decision Lindsay and Rutter [1980] 3 W.L.R. 660 (Q.B.). It is a decision onpoint.

The police removed the bra of a detainee as a matter of police policy and the court found the removal unjustified. [41] The Supreme Court in Golden emphasized that searches and seizures of this nature represent a significant invasion of privacyand are often humiliating, degrading and traumatic. Such was Ms. Bouchard’s experience. They should not be carried out as a matter ofroutine policy. The Court further noted that women can be particularly vulnerable to the humiliation involved. [42] The Ontario Court of Appeal in R. v.

Flintoff (1998) (ON CA), 16 C.R. (5th) 248 excluded the breath resultsfor a driver subjected to an unjustified strip search. Applying the revised analysis in Grant, I find the breach of Charter rights veryserious. It appears to be not an isolated incident but a policy of this officer if not the detachment. As the Supreme Court noted inGolden, its review of caselaw indicated “a disturbing trend toward strip searching detained persons as a matter of routine policy”. [43] Ms.

Bouchard testified in a compelling way about the significant emotional impact this seizure had on her sense of dignity. [44] I recognize that exclusion of the breath results defeats the Crown’s ability to prosecute an important offence by excludinghighly reliable evidence. [45] Based on the rational, polite, co-operative behaviour of Ms. Bouchard, demanding that she surrender her bra in thesecircumstances breached her s.8 Charter rights and because this took place before the breath testing it has both a temporal and causalconnection to the breath sample results.

I am mindful of the gender implications and see this as having a significant impact on herdignity. I see this breach in the context of the other heavy handed, unjustified application of Constable Jacko’s blanket policies inhandling impaired drivers which have breached Ms. Bouchard’s Charter rights I find that exclusion of the breath samples is theappropriate remedy in balancing the competing interests involved. DELAY IN TAKING THE SECOND BREATH SAMPLE [46] Constable Mouland attempted to have Ms. Bouchard participate in the alcohol influence interview after the first sample wascompleted at 12:14.

He agreed that she refused based on legal advice. He returned her to the cell at 12:21. He noted that it was hispolicy to wait approximately 17 minutes between the first and second sample. This is reasonable as it provides an appropriate margin oferror in order to comply with the statutory requirement that at least 15 minutes elapse between samples. [47] He did not explain why he took her back to the cell after she refused to participate in the alcohol influence interview. Theimpression I had is exactly what the Crown submits in writing. She was put back in the cell “because she refused to co-operate”.

TheCrown submits this is a reasonable consequence for someone who on legal advice refuses to answer police questions. I reject this asreasonable. Constable Mouland on his own evidence needed to wait only 10 more minutes to complete the second breath sample. Hecould have used this time profitably in determining how Ms. Bouchard was going to get home as he knew she, at the very least was goingto be subject to an administrative driving prohibition. By putting her back in cells, 26 minutes passed before the second sample wastaken. This is not explained.

It strikes me as unreasonable and fails to meet the statutory requirement that the breath samples be taken assoon as practicable. [48] As a result, the Crown does not have the benefit of the statutory presumption and the Crown’s case fails as well on groundsunrelated to the breach of Ms. Bouchard’s Charter rights. CONCLUSION [49] Effective policing depends on public support. Police are granted extraordinary powers to insure the Queen’s Peace. Publicsupport for the police is undermined by an unjustified, heavy handed exercise of police power. [50] Ms. Bouchard is found not guilty.

Released November 24, 2011 Signed “Donald Fraser”