R. v. O’Neill, 2013 ONCJ 216

COURT FILE No.: Toronto 4817 998 11 70018505 00 DATE: 2013·04·25 Citation: R. v. O’Neill , 2013 ONCJ 216 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — KATIE O’NEILL Before Justice W. B. Horkins Heard on March 1, 2013; Judgment on April 17, 2013 Reasons for Judgment released on April 25, 2013 Daniel Lerner ......................................................................................................... for the Crown Samantha Nassar ........................................................................... for the accused Katie O’Neill HORKINS, W.

J.: [ 1 ] Following her arrest for impaired driving Katie O’Neill was held in police custody for an extraordinarily long period of time; approximately 16 hours. At trial she conceded her guilt but sought a Stay as a remedy for having been arbitrarily detained in violation of her rights, as guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms . [ 2 ] This case required consideration of two points; firstly, considering the totality of the circumstances, was s. 9 violated?

And secondly, if so, what remedy would be appropriate, again, taking into account all of the particular circumstances of this case? [ 3 ] After a consideration of the very thorough submissions of counsel, I delivered brief oral reasons on both questions. I found that the “over-holding” of the accused following the completion of the investigation in this case was unwarranted and excessive. The delayed release of Ms. O’Neill was therefore both contrary to the provisions of the Criminal Code and “arbitrary.” The police conduct in this case constituted a breach of Ms.

O’Neill’s rights against being arbitrarily detained, as guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms . [ 4 ] On the issue of the appropriate remedy, I rejected the accused’s Application for a judicial Stay as a remedy for her unlawful detention. Instead, I applied an enhanced pre-trial custody credit and deemed her period of “time served” plus a $1 fine to be in satisfaction of the statutory minimum penalty. I also imposed a mandatory driving prohibition. [ 5 ] When delivering oral reasons in this case, I reserved the right to provide further written reasons and these are those reasons.

THE FACTS [ 6 ] At about 4 pm on February the 19 th , 2011, Katie O'Neill was arrested for impaired driving. She was held in custody until almost 8:30 the next morning. The investigation in this otherwise, rather routine drinking and driving case was finished prior to 6:30 pm. Ms. O’Neill provided breath samples that reflected a blood alcohol level in the 150 mg% range. She was then brought to the officer- in-charge (OIC) of the station for release. The OIC determined that due to her condition she was not yet fit for release and advised her that her release would be delayed until she was sufficiently sober.

The accused does not dispute that this initial decision to delay her release was well-founded on all the circumstances prevailing at that point in time. [ 7 ] In deciding to delay her release, the officer-in-charge took into account the breath readings of almost double the legal limit; the information from the accused that she suffered chronic back pain and had consumed certain prescription pain killers; that she was exhibiting observable indicia of impairment that suggested a higher degree of impairment than the readings alone might suggest; and that her arrest had resulted from her involvement in a minor motor vehicle accident and that she had attempted to leave the scene of that accident. [ 8 ] The OIC took into account that most people eliminate alcohol at a rate of 15 mg % per hour and so advised Ms.

O’Neill

that she should expect to be held for about another two to three hours, perhaps even four hours, at which point her condition would bereassessed. [9] The OIC was expressly concerned that in her present state she might not appreciate the undertakings required for herrelease. I can easily infer that he would also have been concerned both for her own safety and for the safety of others. [10] Prisoners are not held at the Traffic Services Unit and so Ms. O’Neill was transferred to 55 Division, apparently thecentral lock-up for female prisoners, arriving there at about 7 pm.

The booking sergeant at 55 Division made his own determination tolodge Ms. O’Neill based on the information package he received from Traffic Services, as well as upon his own observations. Thedecision was essentially based on the same considerations as the assessment of the OIC at the Traffic Services Unit (TSU) and wasequally reasonable and according to law. [11] Prior to being lodged in the cells the booking sergeant at 55 Division told Ms. O’Neill that she would be reassessed forrelease in two to three hours. That was at about 7 pm; he went off shift at 9:30 pm without any further dealings with Ms.

O’Neill. [12] The officer-in-charge, who came on for the over-night shift, from 9:30 pm to 5 am, was unavailable to give evidence attrial having since retired from the force. It was not entirely surprising that this officer was unavailable; this trial took place two yearsafter the fact and it was likely some considerable time after the events in question that the Crown was alerted that the “over-holding” ofMs. O’Neill would be an issue. Although the Crown cannot be faulted for failure to produce this witness, it does produce an unfortunateevidentiary gap. [13] In any event, I have the evidence of Ms.

O’Neill, herself, as to what transpired for the ten hours or so that she spent in thecells at 55 Division. [14] Ms. O’Neill’s arrival at 55 Division and the booking was video recorded. She can be seen walking into the stationunassisted and with no noticeable difficulty. She let the police know that her boyfriend would come to pick her up if they released her.The decision is made to keep her for a while. There then appears to be a bit of a set to with the matron, who has come to do the pre-lodging search. The matron and Ms. O’Neill argue over the matron’s instruction to remove her piercings.

The matron can be heard to say,“Take them out, or I will.” They shuffle off camera, presumably into a side room, from where screaming and yelling can be heard.Amongst other things, the matron can be heard telling O’Neill, “You are acting like a two-year-old.” [15] Ms. O’Neill is then lodged in the cells. She was denied access to a phone. She described her cell as “freezing cold.” Shewas dressed in a light party dress. Her sweater was taken away from her. The “bed” in her cell was a concrete slab. She has chronic paincaused by a back injury. She was not allowed to have either a pillow or a blanket.

She was not provided with anything to eat or drinkuntil about 8 the next morning, when she was given a glass of water. She was very uncomfortable. There is no clock in the cell area; asthe time passed, she didn’t know how long she had to endure being held in custody. The assurance that she would be released in a “fewhours” turned into a further 13 hours; during which, it would seem that she was either ignored or forgotten. [16] Sergeant Pabla was the booking sergeant who received Ms. O’Neill at 55 Division.

He advised us that in the case offemale prisoners, once lodged, his responsibility is delegated to the matron. I assume this to be the same individual with whom Ms.O’Neill had an unpleasant encounter at the booking stage of the process. [17] Sergeant Pabla went off duty at 9:30. Sergeant Cowan came on duty at 5 or 5:30 am the next day. Neither Pabla norCowan was able to say who was on shift for the eight hours or so in between. I have no evidence that during that time, or at anytime, anyreassessment was done as to the necessity of the continued delay in releasing Ms.

O’Neill. [18] Understandably, Sergeant Cowan had little recall of this particular case. She advised us that the routine of the morningshift is very busy and includes parading the oncoming shift of officers and organizing the release of the overnight prisoners. I have noreason to doubt that she attended to the release of Ms. O’Neill at her earliest opportunity and as soon as her other obligations allowed.Unfortunately Ms. O’Neill remained in the cells for almost three hours after Sergeant Cowan came on duty that morning. THE LAW [19]

Section 9 of the Canadian Charter of Rights and Freedoms provides that: “Everyone has the right not to be arbitrarily detained or imprisoned.” [20] Section 24(1) provides that: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” [21] Depending on the context in which it occurs, a detention or imprisonment may be described as “arbitrary” if it is random,capricious or unjustified. An unlawful detention is implicitly “arbitrary.” (R. v. Mann, 2004 SCC 52 , [2004] S.C.J 49 S.C.C.) [22]

Section 498 of the Criminal Code of Canada states that an individual arrested and taken into custody for an offence suchas impaired driving, shall be released from custody “as soon as practicable.” [23] The Code also directs the police not to release a person if there are reasonable grounds to believe that it is necessary inthe public interest to detain the person on the basis of, amongst other things, the need to prevent the commission of continued or furtheroffences.

[24] The continued detention of a motorist arrested for impaired driving and held until she has “sobered up” is authorised bythese provisions and not per se a violation of s. 9 of the Canadian Charter of Rights and Freedoms. However, the continued detention ofthe accused is only justified so long as it is necessary for community safety or the accused’s own well-being. There is no reason to doubtthat in this case there was ample cause to delay the release of Ms. O’Neill, at least for the two to three hours initially expressed.

Thecomplaint made here relates not to the initial decision to delay her release but rather to the actions of the police in failing to monitor orreassess her continued detention. What resulted from that failure was a grossly excessive, largely unexplained and unquestionablymiserable night in the cells at 55 Division for an individual who probably should have been released many hours sooner than sheeventually was. [25] In R. v. Prentice, 2009 ONCJ 708, Justice Schwarzl provides a helpful

summary of the case law on this threshold issue:

Section 498 of the Criminal Code mandates the release of an arrested person as soon as practicable unless it is believed onreasonable grounds that it is necessary in the public interest that the person be detained. The real question is whether or not he wasreleased as soon as practicable in the circumstances of this case. If the answer is "yes", then the post-offence detention was lawful. If theanswer is "no", then it was illegal and hence a breach of the Applicant's

section 9 Charter right. 39. It is settled in law that reasonable grounds include the need to detain intoxicated persons until they are sober and safe to bereleased: R. v. Sapusak, [1998] O.J. No. 3299 (S.C.J.), affirmed [1998] O.J. No. 4148 (C.A.), R. v. Coulter, [2000] O.J. No. 3452 (C.J.),affirmed [2001] O.J. No. 5608 (S.C.J.), R. v. Padda, [2003] O.J. No. 5502 (C.J.), R. v. Gaudette, [2005] O.J. No. 2399, reversed forother reasons, [2006] O.J. No. 3732 (S.C.J), R. v. Kisil, 2009 ONCJ 424 , [2009] O.J.

No. 3821 (C.J.). [26] Where there are available alternatives to the continued detention of an accused then the police are obliged to consider andact upon them. If for instance there is a responsible individual who will take charge of the accused then, other things being equal, releaseto such person is warranted. [27] The Ontario Court of Appeal in Iseler, (2004), (ON CA), 190 C.C.C. (3d) 11, provides an example ofcircumstances very similar to this case. In Iseler, the accused was held in custody for over 11 hours after the breath tests werecompleted.

It appeared to the Court that no independent assessment of the accused was conducted in order to determine if an earlierrelease was possible. The Court noted that the accused had enough money for a taxi and his wife was at home and was able to come andget him from the police station. The basis for the decision to detain the accused was a general policy guided by a "rule of thumb" relatedto alcohol elimination rates.

On the basis that no assessment was conducted of the accused, the Court distinguished Sapusak and foundthe s. 9 breach to be established. [28] In the case before me it is clear that the initial decision to delay Ms. O’Neill’s release was entirely proper and based on acombination of legitimate concerns and was not the result of a “rule of thumb” or blanket policy. [29] In R. v.

Price, 2010 ONSC 1898 , [2010] O.J. 1587 at paragraph 93, Justice Durno articulates a “non-exhaustive” list of appropriate considerations for delaying the release of an impaired driver: • Blood alcohol concentration; • Whether the accused was charged with impaired operation; • Her level of comprehension; • The ADLS; • Impoundment of the vehicle; • The possibility of a responsible driver picking up the accused; • Accused’s criminal record; • Accused’s outstanding charges; • The accused’s attitude, including the fact that drinking and driving is evidence of recent bad judgment. [30] Many of these factors weighed in favour of the initial decision to delay Ms.

O’Neill’s release. The difficulty here arises inthis case due to the failure to reassess those factors with the passage of time. There should have been an ongoing, individual assessmentof the need for the continued detention of Ms. O’Neill. [31] My finding that Ms. O’Neill’s continued detention was unlawful and therefore "arbitrary," is based on the evidence. Thelength of “over-holding” was significant. The accused was lodged in a cold cell with a concrete slab for a bed; her sweater was takenaway, although she was attired in a light, party dress; she was denied a blanket and a pillow.

There is no evidence before me of anymonitoring of her progress towards sobriety; and most importantly, no evidence of any re-evaluation of her suitability for release as thehours dragged on. [32] I also consider the particular frailty of this young woman who suffers with chronic back pain, which she had made knownto the police. The cell was cold and she was given no mat to sleep on. [33] I also take note that she advised the police of the availability of a sober, responsible person willing to take her home: herboyfriend.

There is no evidence of this option being considered. [34] In the case before me there is essentially no evidence of any reconsideration of Ms. O’Neill’s detention from about 9:30in the evening, when one shift ended, until about 8 or 8:30 the next morning, a few hours into the morning shift. In view of Ms.

O’Neill’s evidence and the complete lack of any suitable explanation for her continued detention throughout the night, I am satisfied thatshe was not released from custody “as soon as practicable.” I find that her continued detention was not just “arbitrary” but that theconditions she was subjected to were unjustifiably harsh. On the evidence, it appears that the most charitable inference is that when the9:30 shift left she was simply forgotten. To put it mildly, and in words borrowed from my colleague Justice Feldman in the similar caseof R. v.

Dhanpat [2012] O.J. 6196, this accused “seemed to fall prey to a degree of administrative laxity.” I would add, “a shockingdegree.” [35] In all the circumstances there was a definite breach of Ms. O’Neill’s rights under s. 9 of the Canadian Charter of Rightsand Freedoms to not be arbitrarily detained or imprisoned. THE REMEDY [36] In other similar cases, the issue of an appropriate remedy has presented a challenge.

Section 24(1) of the CanadianCharter of Rights and Freedoms provides that: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” [37] A Stay is a remedy of last resort, reserved only for the clearest of cases and for situations where other more measuredalternates are inadequate.

Applications for judicial Stays have generally been rejected in cases such as this on the basis that the over-holding of the accused is almost completely disconnected from the circumstances of the offence and its investigation. The Charterbreach has no impact on the merits of the case or the fairness of the trial proceedings.

In the drinking and driving context, theinvestigation is long completed by the time there is any Charter breach arising from the “over-holding” of the accused. [38] In addition, it seems to me that the public interest in the various collateral sanctions for impaired driving is importantfrom a public safety perspective. A Stay would mean no driving record, no driving suspension, no prohibition from driving and no inter-lock program.

Although a Stay is a legitimate consideration, in this case I believe that a more measured and appropriate remedy isavailable. [39] Mitigation of sentence, or a sentencing discount, has been approved as a legitimate form of Charter remedy. However,where, as here, there is a statutory mandatory minimum sentence there may be little room for a meaningful discount. [40] In Nasogaluak, 2010 SCC 6 , [2010] S.C.J. 6, S.C.C., a driver was arrested for impaired driving then beaten by apolice officer and denied medical treatment. He pleaded guilty to the impaired driving charge and had the minimum fine waived as aremedy.

On review, the Supreme Court held that the trial judge erred in waiving the statutory minimum fine as a form of constitutionalexemption. However, the Court did endorse taking the state misconduct into account on sentence and they endorsed the imposition of aconditional discharge, together with the mandatory minimum fine. [41] In Price, an over-holding case factually similar to this case, Justice Durno approved of the trial judge providing a remedyby way of sentencing the offender to “time served” instead of imposing the mandatory minimum fine.

Although obiter, Justice Watt’sreasons at the Court of Appeal application for leave may be read as affirming that this was indeed an appropriate remedy. [42] In our high volume plea court we regularly grant pre-trail custody credit to offenders for each calendar day spent incustody. An overnight stay in the lock-up is counted for two days credit. Ms. O’Neill is therefore entitled to at least two days pre-trialcustody credit as against her sentence. The harsh conditions and unlawful nature of her detention justifies an enhanced credit multiplierof 1.5.

She is entitled to a pre-trial custody credit of at least three days. The Code provides for a range of sentence, from a mandatoryminimum $1000 fine up to a maximum period of imprisonment of 18 months. [43] On the sentencing hearing in this case, the Crown asked the Court to consider a sentence of a fine slightly exceeding the$1000 minimum and suggested that I could then reduce the fine to the $1000 mark as a sentence reduction remedy. This is not anunreasonable approach. [44] In my view, the mandatory minimum is not a starting point but rather a mandatory block on the spectrum of otherwiseavailable sentences.

In light of the multiple collateral penalties flowing from a conviction for drinking and driving, the fine itself is oftenthe least of the consequences for most accused and pales in comparison to the combined effect of having a criminal record; exposure to amandatory jail sentence for a subsequent offence; the mandatory driving prohibition; the suspension of license; the interlock program;and the impact on insurance rates; not to mention the legal fees involved. [45] Bearing all of this in mind, and considering that Ms.

O’Neill has at least three days of pre-trial credit, it is my view that,as in Price, “time served” is an appropriate sentence in this case. I consider a two- to three-day sentence to be more severe than a fine inthe $1000 to $1500 range. [46] Giving credit for “time served” strikes me as a remedy that is particularly “appropriate and just in the circumstances”where the Charter breach itself was actually an unlawful period of detention. [47] Often when “time served” is imposed in our court, the accused will be taken to the jail for release. Not wishing to riskMs.

O’Neill being held for any additional time in custody, I choose to fine her a nominal fine of $1 and note the pre-trial custody credit.To be clear, my intention was not to grant a constitutional exemption from the statutory mandatory minimum fine but, rather, to simplyapply a pre-trial custody credit for time served and add a nominal fine in full satisfaction of the mandatory minimum. In hindsight, I am

not sure that the nominal $1 fine was even necessary. [ 48 ] In addition, the accused is prohibited from operating a motor vehicle anywhere in Canada for a period of one year. Released: April 25, 2013 _________________________ Justice W. Horkins