R. v. McCormack, 2019 NLSC 218

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. McCormack , 2019 NLSC 218 Date : December 10, 2019 Docket : 201701G2541 Her Majesty The Queen v. Justin McCormack Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 6, 2019

Summary: This is an appeal of an acquittal of impaired driving charges. The Trial Judge had found that in carrying out an investigative detention, the police had violated the Respondent’s

section 9 Charter right by placing him in a locked police vehicle. In the circumstances, the Trial Judge determined this was not reasonably necessary for the police to carry out its duties. The Trial Judge excluded the breath sample evidence obtained following the unlawful detention and the Respondent was acquitted. Held : The appeal is dismissed. In applying a purposive approach to interpreting the

section 9 Charter right, it is clear that placing the Respondent in a locked police vehicle in these circumstances constituted a significant impact on his liberty. The Court could find no error of law or misapprehension of evidence by the Trial Judge in finding that the police action was not reasonable in the circumstances and thereby violated

section 9. Furthermore, the Court noted the deference to be afforded to a Trial Judge in carrying out a section 24(2)

analysis of the Grant factors. The Trial Judge had applied the correct test and his balancing and weighing of the factors was entitled to deference. Appearances: Dana E. Sullivan Appearing on behalf of the Crown Derek J. Hogan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Vokurka , 2014 SCC 22 ; R. v. Gonzales , 2017 ONCA 543 ; R. v. Grant , 2009 SCC 32 ; R. v. Mann , 2004 SCC 52 ; R. v. McGuffie , 2016 ONCA 365 ; R. v . Squires , 2016 NLCA 54 ; R. c. Côtè , 2011 SCC 46 ; R. v. Aucoin , 2012 SCC 66 ; R. v. Le , 2019 SCC 34 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Chaytor, J. : OVERVIEW AND background facts [ 1 ] This appeal explores the parameters of the common law authority of the police in executing an investigative detention and how that authority may be exceeded by securing an accused in the back of a police cruiser. [ 2 ] On October 26, 2014, a single vehicle accident occurred in a residential area. The police arrived shortly after the accident and witnesses identified the Respondent, Justin McCormack, as the driver. The first officer on the scene noticed Mr. McCormack had constricted pupils.

This, along with the circumstances of the accident, caused the officer to suspect that he may have been under the influence of a drug. [ 3 ] The officer informed Mr. McCormack that he was under investigative detention and that she wished to question him. It was raining so she directed Mr. McCormack to sit in the rear of the police cruiser. He was read his rights and caution. Mr. McCormack wished to speak with counsel. The officer contacted legal counsel for him on her cell phone and opened the door of the police cruiser to hand Mr. McCormack the phone.

At that point, for the first time, the officer noticed a smell of alcohol emanating from Mr. McCormack’s breath. Mr. McCormack spoke to legal counsel and was then given rights and caution and the demand for the approved screening device as the officer now believed Mr. McCormack was under the influence of alcohol. Mr. McCormack provided a sample of his breath. A fail was registered.

[ 4 ] Ultimately Mr. McCormack was charged with operation of a motor vehicle while impaired pursuant to section 253(1) (

a) and section 253(1) (

b) of the Criminal Code , R.S.C. 1985, c. C-46 . [ 5 ] At trial, the Judge found that at the time Mr. McCormack was placed in the car, the police had the basis for an investigative detention and, in the circumstances, securing him in the vehicle was not necessary to carry out the police duties. In doing so, the police actions constituted a defacto arrest. As a result, the Trial Judge found that there was a breach of Mr. McCormack’s right to be free from arbitrary detention pursuant to

section 9 of the Canadian Charter of Rights and Freedoms (the “ Charter ”). As the unlawful detention led to the detection of the smell of alcohol and the demand for a breath sample, the Trial Judge further found a violation of Mr. McCormack’s

section 8 Charter right to protection from unreasonable search and seizure. Because of the Charter violations, the evidence obtained from the breath sample was excluded pursuant to section 24(2) of the Charter . The Crown called no further evidence on the section 253(1) (

b) count and that charge was dismissed. Submissions were made on the section 253(1) (

a) charge and that charge was also dismissed. Mr. McCormack was acquitted. [ 6 ] The Crown appeals the acquittal. [ 7 ] The issues I am to determine are: 1) Did the Trial Judge err in law in finding that Mr. McCormack’s detention in the police cruiser was a breach of

section 9 of the Charter , including a consideration of whether the Trial Judge misapprehended the evidence? 2) Did the Trial Judge err in fact and law by excluding the evidence obtained as a result of the Charter breaches? [ 8 ] I am unable to find any error on the part of the Trial Judge that would warrant interference by this Court. Therefore, for the reasons that follow, the appeal is dismissed. Issue 1: Did the Trial Judge err in law in finding that Mr. McCormack’s detention in the police cruiser was a breach of

section 9 of the Charter , including a consideration of whether the Trial Judge misapprehended the evidence? Standard of Review [ 9 ] The standard of review for an error of law is correctness. Insofar as the Crown engages the issue of misapprehension of evidence on the part of the Trial Judge, the standard of review is a palpable and overriding error, which means significant deference is owed to the Trial Judge. In other words, the error must be obvious and clear.

Where the inferences of the Trial Judge are reasonably supported by the evidence, the Supreme Court of Canada has made it clear that it is not for me, sitting as an appellate court judge, to reweigh the evidence and substitute my own views of it ( R. v. Vokurka , 2014 SCC 22 ). Analysis [ 10 ] It is well established that a purposive approach is to be applied to the

interpretation of Charter rights and freedoms. [ 11 ]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. The purpose of the guarantee against arbitrary detention is to protect individual liberty from unjustified state interference. Absent a law to the contrary, individuals are free to do as they please while on the other hand, the police may act only to the extent that the law empowers them to do ( R. v. Gonzales , 2017 ONCA 543 , at paragraph 51 ). [ 12 ] The threshold question of whether a detention occurred was not a contentious issue as Mr. McCormack was placed in a locked police cruiser.

Physically, there was a detention. The next question to be addressed, was key in this case: was the detention arbitrary? ( R. v. Grant , 2009 SCC 32 , at paragraph 54 ). [ 13 ] Detention will be arbitrary unless it is authorized by law. The law itself must not be arbitrary and must be constitutionally valid. Additionally, the detention must be carried out in a reasonable manner.

In other words, in determining if a detention is arbitrary, a court must consider whether some lawful authority sanctioned the detention, and if so whether the detention fell within any applicable limits on that authority ( Gonzales , at paragraphs 52-53 ). [ 14 ] It must be noted that this is not a case where the police acted under the authority in the Criminal Code to detain Mr. McCormack in the police cruiser in order to administer an approved screening device where the officer reasonably suspected that he had alcohol in his body. In such a case, as per section 254(2) (b) 2008 c. 6,

section 19 [1] , the police could have required Mr. McCormack to provide a sample of breath for an ASD and, “if necessary, to accompany the peace officer for that purpose”. [ 15 ] In this case, the police detained Mr. McCormack for investigative purposes. A police officer has authority to detain at common law for investigative purposes where, in the totality of the circumstances the officer has reasonable grounds to suspect a nexus between the individual detained and a criminal investigation ( R. v. Mann , 2004 SCC 52 ).

The Trial Judge found that the police had grounds to detain for such purposes, and no more. [ 16 ] The key question then became whether the detention fell within the scope permitted by way of an investigative detention. In answering this question, the court must consider all the circumstances.

In particular consideration is to be given to the extent to which the interference with individual liberty was necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference ( Mann , at paragraph 34 ). [ 17 ] The duration and nature of a detention justified as an investigative detention must be tailored to the investigative purpose of the

detention and the circumstances in which the detention occurs ( R. v. McGuffie , 2016 ONCA 365 , at paragraph 38 ). In McGuffie , a detention for investigative purposes was found to have breached the accused’s

section 9 Charter right where the accused was handcuffed and left in the back of a police vehicle for a half an hour while officers pursued other aspects of their investigation. In finding the breach of

section 9 , the court commented that the circumstances looked more like an arrest in circumstances where the officers lacked reasonable and probable grounds. At paragraph 37, the Ontario Court of Appeal noted that a detention contemplated by an investigative detention cannot interfere with individual liberty to the extent contemplated by a full arrest. [ 18 ] Similarly, in this case, the officer had reasonable suspicion – not reasonable and probable grounds. The Trial Judge concluded that the officer’s actions in locking Mr.

McCormack in the police cruiser went beyond what was reasonably necessary in the circumstances for an investigative detention and it became a defacto arrest. [ 19 ] On appeal, the Crown asserts that in so finding, the Trial Judge misapprehended the evidence and failed to consider the nature of the detention. The argument is that the detention was brief, Mr. McCormack was provided rights and caution, he elected to speak to counsel and most of the time in which Mr. McCormack was detained in the back of the police cruiser was spent speaking to counsel.

The Crown points to the importance of privacy in exercising his right to counsel and that given this was an accident scene with people milling around, this was the only reasonable place for him to have privacy. Furthermore, the Crown contends the Trial Judge failed to consider that the officer wished to question Mr. McCormack. Given that there were other potential witnesses at scene, it would be important to speak to Mr. McCormack in private so as not to risk “cross-contamination” of the evidence (presumably the risk being that the officer’s conversation with Mr.

McCormack might be overheard by others). [ 20 ] These are valid points and may be factors in determining if detention in a police cruiser was necessary in a case where the evidence were to support these as reasons for the detention. There was no evidence, however, before the Trial Judge that the detention was necessary for any of these reasons. The officer’s evidence was simply that she asked Mr. McCormack to sit in the car because of the weather and to question him. She offered no rationale as to the privacy of the location for questioning or to afford Mr.

McCormack a place where he could exercise his right to counsel. Although these points were raised by the Crown in argument on this appeal, this was not part of evidence at trial and therefore properly did not form part of the factual matrix considered by the Trial Judge in reaching his decision as to the reasonableness of the detention. [ 21 ] It is clear that the Trial Judge applied the correct test and found that on the facts of this case it was not reasonably necessary (because of the weather and for the purpose of asking questions) for the police to have locked Mr. McCormack in the back of a police cruiser.

In so concluding, the Trial Judge referenced Mann , McGuffie , and R. v . Squires , 2016 NLCA 54 , all of which cautioned that an investigative detention should not be allowed to become a defacto arrest. In applying Squires , the Trial Judge concluded there was no reason for Mr. McCormack to be placed in the police cruiser in the absence of any safety concern, risk of flight, or uncooperative behavior on Mr. McCormack’s part. [ 22 ] Circling back and concentrating on the purpose of the protection guaranteed by

section 9 of the Charter : confining a person in the back of a police vehicle is very restrictive on a person’s liberty. The facts of this case did not support the extent of the interference on Mr. McCormack’s liberty as having been reasonably necessary for the police to carry out its investigative purpose. [ 23 ] The Trial Judge correctly applied the law to the facts. I am unable to find any error of law or misapprehension of the evidence. Issue 2: Did the Trial Judge err in law in excluding the evidence obtained as a result of the Charter breaches?

The Test [ 24 ] Section 24(2) requires the exclusion of evidence if it is established that the admission of the evidence would bring the administration of justice into disrepute. Mr. McCormack bore the onus at trial to establish this test on the balance of probabilities. [ 25 ] As instructed by the Supreme Court of Canada in Grant , a judge’s role on an application for exclusion under section 24(2), is to examine three lines of inquiry to determine whether, considering all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

Those are: (1) the seriousness of the Charter violation; (2) the impact on the accused’s Charter protected interests; and (3) society’s interest in the adjudication of the case on its merits. Standard of Review [ 26 ] In R. c. Côtè , 2011 SCC 46 , at paragraph 44 , the Supreme Court of Canada again emphasized the approach to section 24(2) taken in Grant and the requirement for appellate courts to give “considerable deference” to the ruling of the Trial Judge.

As noted by the Ontario Court of Appeal in McGuffie , this is because the three inquiries identified in Grant require both fact-finding and the weighing of various, often competing interests. Appellate review of either task on a correctness standard is neither practical, nor beneficial to the overall administration of justice. Therefore, a trial judge’s decision to admit or exclude evidence under section 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination ( McGuffie , at paragraph 64 ).

Analysis [ 27 ] The Crown submits that if there were a Charter breach, the Trial Judge erred in excluding the evidence of the breath sample because the breach was on the lower end of the scale of seriousness and the intrusion on Mr. McCormack’s rights was minimal. On the other hand, the Crown submits that the evidence was reliable and crucial to the Crown’s case. The Police Conduct [ 28 ] The Crown submits that the police conduct was not serious in this case. Mr. McCormack was given his right to counsel and

police caution and it is contended that the officer acted in good faith. [ 29 ] The infringing conduct may range in degrees of seriousness along a spectrum from inadvertent reasonable mistakes to negligence of varying degrees to intentional or systemic behavior where rights are deliberately violated.

The further the conduct falls along this culpability spectrum, the more serious it will be considered for purpose of assessing this first factor ( Grant , at paragraph 73 ). [ 30 ] The Trial Judge found that the conduct in this case was serious in that there were two Charter breaches ( sections 8 and 9 ) and that the conduct of the officer went too far for an investigative detention.

The conduct amounted to a defacto arrest in circumstances where the officer knew she lacked reasonable and probable grounds. [ 31 ] Although good faith on the part of the police can mitigate the seriousness of the breach, and reduce the need for the court to disassociate itself from the conduct, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith ( Grant , at paragraph 75 ). [ 32 ] The Supreme Court of Canada has on several occasions not excluded evidence when the law was uncertain at the time of the police action. In R. v.

Aucoin , 2012 SCC 66 , the police intended to secure a person in a police cruiser during a traffic stop while the ticket was being written to prevent the individual from fleeing the scene. Before placing the individual in the car, the police carried out a pat down search for safety reasons and drugs were discovered. Moldaver, J., for the majority, held that the decision to detain the person in the police cruiser would have been an unlawful detention as it was not reasonably necessary in the circumstances.

The evidence obtained, however, was not excluded because the majority found that the officer acted without deliberate disregard for the accused’s Charter rights and that the law surrounding police powers in the detention context was still evolving. [ 33 ] Counsel for Mr. McCormack argues that the interaction between his client and the police occurred two years after the Aucoin decision and ten years after Mann and therefore the police should have known that locking Mr. McCormack in the back of a police cruiser would constitute a violation of

section 9 . [ 34 ] It appears the good faith argument was not raised by the Crown at trial in an effort to mitigate the seriousness of the breach. In any event, in the aftermath of Aucoin , it should have been clear to the police that caution must be exercised in making decisions to secure individuals in the rear of police cruisers so as to not violate Charter rights. The restrictiveness such action imposes on individual liberty ‘fundamentally alters the nature of the detention’ and when not reasonably necessary, constitutes a violation of

section 9 . In this case, the officer locked Mr. McCormack in the vehicle in circumstances where there was no indication of flight or safety risk, or uncooperative behaviour. As cited above, ignorance of Charter standards cannot be equated with good faith. The Seriousness of the Violation [ 35 ] The second line of inquiry requires an examination of the extent to which the Charter breach interfered with or undermined the interest protected by the right infringed. As noted above, the prohibition against arbitrary detention in

section 9 is to protect individual liberty against unjustified state interference. [ 36 ] The more serious the impact on the protected right, the greater the risk that admission of the evidence will bring the administration of justice into disrepute. Some violations will be more intrusive than others. For example, a brief detention with no physical confinement is less intrusive than placing an individual in a locked police cruiser. When viewed from the lens of the right that

section 9 aims to protect, it is apparent that the impact on Mr. McCormack’s liberty was serious. Once locked in the police car, his liberty was extremely restricted. [ 37 ] The Trial Judge found what transpired was a serious impact on Mr. McCormack’s

section 9 Charter right. At paragraph 15 of his decision, the Trial Judge references the increased restriction on Mr. McCormack’s liberty by being placed in the police cruiser. He cites from Aucoin as to the shift in the nature and the extent of the detention that flows from such an action: “That decision carried with it increased restrictions on the appellant’s liberty interests and the added feature of an intrusion into his privacy interests. Those factors … altered the nature and extent of the appellant’s detention in a fairly dramatic way”.

Adjudication on the Merits [ 38 ] The third line of inquiry in Grant is society’s interest in an adjudication of the case on its merits. It typically pulls in favour of the inclusion of the evidence. In carrying out this analysis, Grant instructs an assessment of: (1) the reliability of the evidence; (2) the importance of the evidence to the prosecution’s case; and (3) the seriousness of the offence. [ 39 ] There is no doubt that society has an interest in adjudication of an impaired driving case on its merits.

Society also has an interest, however, in ensuring that police do not overstep the limits of their authority and breach Charter rights when carrying out an investigative detention. [ 40 ] The evidence obtained in this case was reliable in that it was physical evidence, the reliability of which would not have been affected by the Charter violation. There is also no doubt that the breath sample evidence was crucial to the Crown’s case. As Crown counsel submits, its case was “gutted” with the exclusion of the evidence.

With respect to the seriousness of the offence, this could be considered somewhat of a neutral factor in that the Supreme Court of Canada has noted that this can weigh in favour of exclusion and inclusion of the evidence ( Grant , at paragraph 84 ). [ 41 ] The Trial Judge addressed the third line of inquiry. At paragraphs 27 to 29 of his decision, he acknowledges the reliability of the evidence and the importance of the evidence to the Crown’s case. Nonetheless, the Trial Judge found that this did not outweigh the seriousness of the impact to the Charter rights that he found to have been infringed.

Summary of Issue #2

[ 42 ] In this case, the Trial Judge carried out a section 24(2) analysis. He applied the correct test in that he analyzed the facts in the context of the Grant factors. With respect to the first factor, he found that the conduct was serious in that there were two Charter breaches. He further found that the conduct of the officer went too far for an investigative detention and was a defacto arrest. With respect to the second factor, the Trial Judge referred to the increased nature of the restriction of placing Mr. McCormack in the police cruiser. It was from this breach of

section 9 that the breach of

section 8 flowed, as the smell of alcohol only became apparent once Mr. McCormack was unlawfully confined. The Trial Judge also considered the third factor and although found the evidence reliable and of crucial importance to the Crown’s case, this did not outweigh the first two factors. [ 43 ] The Trial Judge’s approach was in keeping with the jurisprudence from the Supreme Court of Canada as articulated in Côté .

If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility ( McGuffie , at paragraph 62 , referencing Côtè paragraphs 81-89 ). The importance of the first two factors in pulling for exclusion was reiterated recently by the Supreme Court of Canada in R. v.

Le , 2019 SCC 34 , at paragraph 141 , where it noted that it is the sum, not the average, of those two first lines of inquiry that determines the pull towards exclusion. [ 44 ] As previously stated, the weighing process and the balancing of the Grant factors is a matter for the Trial Judge and where the Judge has considered the proper factors, appellate courts should accord considerable deference to his or her determination. [ 45 ] I am unable to find an error on the part of the Trial Judge that would warrant interference by this Court. conclusion [ 46 ] For the foregoing reasons, the appeal is dismissed. _____________________________ Sandra R.

Chaytor Justice [1] This provision was in effect on October 26, 2014 when Mr. McCormack was detained. As of December 18, 2018, the police may require drivers to provide samples of their breath for an ASD without suspecting that they have alcohol in their bodies per

section 320.27(2) of the Criminal Code , 2018 c. 21 s. 15 .