R. v. MacGregor, 2017 ONCJ 253

ONTARIO COURT OF JUSTICE CITATION: R. v. MacGregor , 2017 ONCJ 253 DATE: 2017·04·19 COURT FILE No.: Region of Durham 998 15 34107 B E T W E E N : HER MAJESTY THE QUEEN — AND — Adam Scott MacGregor Before Justice J. De Filippis Heard on March 15, 2017 Reasons for Judgment released on April 19, 2017 Mr. F. Stephens..............................................................................counsel for the Crown Mr. M.

MacGregor [1] .................................................................counsel for the defendant De Filippis J.: [ 1 ] The defendant was tried on a charge of “over 80; that is, that he had care and control of a motor vehicle with a blood alcohol level above the legal limit. The Defence claims the police violated his rights as guaranteed by sections 8, 9, and 10(

b) of the Charter of Rights and Freedoms. In argument, at the end of the trial, the Defence relied only on the

section 9 claim. On the evidence presented to me, this is the only viable argument. Indeed, I accept it. These reasons explain why I dismiss the charge. [1] Counsel is not related to the defendant

[2] I heard from one witness for the Crown, P.C. Blandford. Much of his evidence is not in dispute. On Wednesday July 8, 2015, inthe early hours of the morning, this officer, along with P.C. Giguere of the Durham Regional Police Service was on general patrol, in amarked cruiser, in area of Maple St. and Simcoe St. in the City of Oshawa. P.C. Blandford testified that they saw a “suspicious” car.What he meant by this is that the car “circled” in an area known to police for prostitution and drug offences. Accordingly, the officerimmediately signaled for the driver of the car to stop. The driver complied without incident. [3] P.C. Blandford testified the car was stopped pursuant to

section 216 of the Highway Traffic Act (HTA) to inspect documentsrequired of all drivers; namely, licence, vehicle registration, and insurance. This inquiry was not related to any suspected offence underfederal or provincial legislation. In particular, there was no concern about sobriety or the manner of driving. The officer wanted to knowthe identity of the driver because the car in question was in a ‘problem area’. [4] When PC Blandford approached the driver's side of the motor vehicle he observed the defendant seated in the driver's seat.

Henoted that the man’s eyes were bloodshot and asked how much alcohol the defendant had consumed that evening. The latter respondedthat he had consumed one beer an hour earlier. At this time, the officer detected an odour of alcohol. [5] At 3:11 AM, PC Blandford demanded that the defendant provide a sample of his breath into an approved screening device. Thedefendant did so and registered a “fail”. Consequently, he was arrested for the offence before the court and told he would be taken to apolice station to provide a sample of his breath into an approved instrument.

The defendant was handcuffed and taken to the policecruiser. The officer advised the defendant of his right to counsel. The latter said he understood. [6] At 3:25 AM, at the police station, PC Blandford provided his grounds for the breath demand to the qualified intoxilyzer technician,PC McConnell. The defendant was put in contact with duty counsel. After this private conversation, he was subjected to the breath tests.The results of the two samples were100 and 90 milligrams of alcohol in 100 millilitres of blood.

The legal limit is 80. [7] An approved screening device demand at a roadside can be made when an officer has a reasonable suspicion that a driver hasalcohol in his system. There can be no question that after the defendant was stopped the officer had the right to make this demand. Hedetected the odour of alcohol and the defendant admitted consuming a beer one hour earlier. There can also be no dispute that once the defendant failed thattest, it was appropriate that he be arrested and subjected to a breath demand. The test results are over the legal limit.

The only issues arethese: Was the initial stop that put all these events in motion a lawful one?

If not, should the evidence thereby obtained, in violation ofsection 9 of the Charter, be admitted or excluded? [8] Section 216(1) of the HTA provides that “A police officer, in the lawful execution of his or her duties and responsibilities, mayrequire the driver of a motor vehicle to stop and the driver of a motor vehicle, when signaled or requested to stop by a police officer whois readily identifiable as such, shall immediately come to a safe stop”. [9] The Defence argued that “lawful execution of his duties” means there must be a valid reason to stop the motor vehicle.

Since noneexist in this case, the detention was arbitrary. The Crown countered by pointing out that an officer’s duties include checking a driver'slicence, permit, and insurance pursuant to ss. 33(1) and 7(5) of the HTA and s. 3(1) of the Compulsory Automobile Insurance Act. If theofficer then develops the reasonable grounds to believe that the driver has committed an offence under s. 253, the officer may arrest thedriver and demand that further samples of breath be provided pursuant to s.254(3) of the Criminal Code. Accordingly, the Crown assertsthat the defendant was lawfully stopped and arrested.

As such, there is no violation of s. 9 of the Charter. [10]

Section 216 grants the police a broad power to stop a motorist. This includes random stops to enforce driving laws and promote thesafe use of motor vehicles: see R v Simpson (1993) (ON CA), 60 O.A.C. 327. Provided this purpose exits, it does notmatter if the officer has an ulterior or dual purpose to investigate other criminal activity; see Brown v Durham Regional Police (1998) (ON CA), 131 C.C.C. (3d) 1. [11] The expansive powers to stop a motor vehicle pursuant to

section 216 are not without limit. An officer must point to some causerelating to the discharge of his/her duties. In other words, the police cannot stop a person driving a motor vehicle for no reason. Thefollowing comments in R v Coates (2003) (ON CA), 172 O.A.C. 330 are instructive (paragraphs 18 and 19) : Each case depends on its own facts and the inquiry into the existence of articulable cause must begin with a determination of whether the

detention was justified in the totality of circumstances. Thus, in R. v. Wilson (1990) (SCC), 56 C.C.C. (3d) 142(S.C.C.) at 147, Cory J. on behalf of the Court held that "... where the police offer grounds for stopping a motorist that are reasonable and that can be clearly expressed (the articulable cause referred to in the Americanauthorities)" the stop was justified, the detention was not arbitrary and the stop did not violate s. 9 of the Charter. In this case Constable Ritchie offered grounds for stopping the appellant's vehicle that were clearly expressed.

The officer identified twospecific factors that justified a stop under s. 216(1) of the Highway Traffic Act, namely the seatbelt infraction and the abrupt lanechange, which Const. Ritchie associated with the possibility of an impaired driver. The trial judge found that the police did not use thesefactors as a pretext for the stop…. [12] In the present case, P.C. Blandford conceded that there was nothing to suggest the defendant had committed, or was committing, anoffence of any kind. Moreover, the officer was not enforcing driving laws or promoting the safe use of motor vehicles.

Rather, thedefendant was stopped because he was driving in an area known for certain criminal activity. In this regard, I note the officer said thedefendant was “circling”. Such a concerted action in such an area might raise legitimate suspicions, but the officer had not observed thecar for sufficient time to justify such concerns. [13] I accept that the officer was not in lawful execution of his duties when he stopped the defendant. As such, the Charter claim hasbeen proven;

section 9 stipulates that “Everyone has the right not to be arbitrarily detained or imprisoned”. [14] Section 24(2) of the Charter provides that, Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter the evidence shall be excluded if it is established that, having regard to all the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. [15] In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice intodisrepute, the following factors must be considered:

(1) The seriousness of the Charter - infringing state conduct;

(2) The impact of thebreach on the Charter - protected interests of the accused; and

(3) Society's interest in the adjudication of the case on its merits. Thethree factors to be considered are fact specific. The first stage of the inquiry reflects the concern that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. The second stage focuses onthe impact of the breach on the protected interests of the defendant. Taking the Charter seriously means that the greater the intrusion onimportant interests, the more likely it is that tainted evidence will be excluded.

The third inquiry considers the value of a trial on themerits. In this regard, the reliability of the evidence is important. R v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. [16] The defendant was stopped because he happened to be driving through an area known for criminal activity. This, in itself, is notunusual or alarming. In any event, the defendant had done nothing wrong. His conduct could not give rise to any reasonable suspicion ofmalfeasance. There is nothing that justifies his detention. In these circumstances, he was entitled to go about his business free of stateinterference.

These considerations strongly favour exclusion of the evidence on the first and second branches of the test I must apply.Society’s interest in the adjudication of a criminal trial on its merits is undermined if highly reliable evidence such as breath samples areexcluded. Thus, the third branch of the analysis favours admission of the evidence. [17] The Court of Appeal for Ontario has provided guidance in how to balance the competing interests raised by section 24(2).

In R. v.McGuffie, 2016 ONCA 365 at para 63, it was noted that; In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward theexclusion of the evidence....If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tipthe balance in favour of admissibility....Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence,the third inquiry will almost certainly confirm the admissibility of the evidence…. [18] Applying these principles it is my opinion that the evidence in this case must be excluded.

The charge against the defendant isdismissed.

Released: April 19, 2017 Signed: “Justice De Filippis”