R. v. Hardy, 2014 MBCA 52

Citation: R. v. Hardy, 2014 MBCA 52 Date: 20140530 Docket: AR 14-30-08159 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) M. Wasyliw ) for the Applicant ) (Respondent) Respondent ) R. N. Malaviya ) for the Respondent - and - ) ) Chambers motion heard: SEAN ROBERT HARDY ) May 1, 2014 ) ) Decision pronounced: (Accused) (Appellant) Applicant ) May 30, 2014 CAMERON J.A. [ 1 ] The accused filed a motion to extend the time to file his motion for leave to appeal under Manitoba, Court of Appeal Rules, Man.

Reg. 555/88R Rule 42, and a motion for leave to appeal under s. 839 of the Criminal Code (the Code ). The Crown consented to his request to extend time. Therefore, these reasons only substantively address the issue of his s. 839 leave application. [ 2 ] The matter arises as a result of the accused’s conviction by a Provincial Court judge (the trial judge) of refusing to provide a breath sample by means of an approved screening device (ASD) contrary to s. 254(2) (

a) of the Code . His subsequent appeal of that conviction was dismissed by the

summary conviction appeal judge (the appeal judge). It is from the decision of the appeal judge that the accused seeks leave. Background [ 3 ] On the date of the incident, the police observed the accused driving a car in the dark without operating headlights. He was also observed to go through a stop sign without fully stopping. As a result, the police conducted a traffic stop of the accused. The police observed that the accused had glossy eyes. During discussions with the police, the accused admitted that he had consumed two beers at some point prior to driving.

The police observed unopened cans of beer on the passenger side of the accused’s vehicle. A demand for the accused to provide a sample of his breath suitable for testing by an ASD was made and the accused agreed. After an ASD had been transported to the location of the traffic stop by an officer from the local police station, the accused blew into it. After a number of attempts, the police determined that the accused was purposely failing to give an appropriate sample and arrested him for refuse ASD. He was provided with his s. 10(

b) Charter right (see the Canadian Charter of Rights and Freedoms ) at the scene and indicated his intention to consult counsel. [ 4 ] After the accused was transported to the police station, the police smelled alcohol on his breath. The police testified that the accused refused to exercise his right to counsel despite being provided with an opportunity to do so. Based on their previous observations, the smell of alcohol and the accused’s “uncooperative argumentative demeanour and behaviour,” the police then believed that the accused was intoxicated or impaired, arrested him for impaired driving and made a breath demand. He was again advised of his s. 10(

b) Charter right, which police said he refused to exercise. This included refusing to talk to legal aid when police attempted to dial the phone for him. The accused was then taken to the breathalyzer room to provide a breath sample, which he refused, resulting in him being charged with the refuse breathalyzer offence. [ 5 ] After the accused was charged, the arresting officers discussed the issue of his release with their supervisor. While it was agreed that the accused could be released on a promise to appear, it was determined that he should remain in custody overnight.

Thus, he was transported to the Brandon Correctional Centre where he was admitted and held in custody until his release the next morning. [ 6 ] The accused testified at his trial. He stated that the headlights of the vehicle he was driving were on, but that he briefly flicked them off to ensure they were working. He denied going through a stop sign and stated that the police were lying in this

regard. He said he tried his best to provide a breath sample suitable for the ASD and he denied that he refused to contact counsel whileat the police station. [7] At trial, the accused argued that the police breached his s. 8 Charter right to be free from unreasonable search andseizure in that they did not have a reasonable suspicion that he had alcohol in his body at the time he was driving.

He also argued thatthe demand was not made forthwith because, in his view, although it only took six minutes for the ASD to be transported to the scene, itcould have been administered sooner had he been taken to the police station to have it administered. Next, he argued that the policebreached his s. 10(

b) Charter right by failing to advise him of his right to counsel prior to demanding a sample of his breath for theASD. He argued that the breathalyzer demand at the police station was in breach of s. 8 of the Charter. He maintained that, despitepolice testimony to the contrary, he was not allowed to exercise his s. 10(

b) Charter right at the police station. Rather, he testified that hewas on the phone contacting counsel when the police removed him from the room and took him to provide a breath sample for thebreathalyzer. By way of remedy, the accused requested exclusion of evidence gathered pursuant to s. 24(2) of the Charter. [8] Finally, the accused argued that he was unlawfully held and detained overnight in breach of his s. 9 Charter right tobe free from arbitrary detention.

He argued that, regardless of whether police believed he was intoxicated or not, an inquiry should havebeen made regarding whether there was a responsible person available to drive him home rather than detain him. Further, he arguedthat, where an accused person is held in custody pursuant to s. 497(1.1) of the Code on the basis that it is necessary in the public interest,there is a duty on police to regularly monitor that person to determine if and when release is appropriate. In his view, it is mandatory forthe police to set up a system to allow for review, regardless of where an accused is being held.

In light of the alleged breaches, herequested a stay of proceedings pursuant to s. 24(1) of the Charter. In the alternative, he requested exclusion of the evidence of therefusal pursuant to s. 24(2) of the Charter. Decision of the Trial Judge [9] The trial judge convicted the accused of failing to provide a breath sample. In doing so, she gave comprehensivereasons.

She reviewed the evidence and found the accused not to be credible, in part, because she found that he “had a very emotionalreaction to the incident right from the start” and that she was left with “the sense that his ability to accurately and reliably interpret, recalland communicate what happened [had] been negatively and in fact fatally impacted.” She addressed all of the ss. 8 and 10(

b) Charterarguments advanced by the accused and rejected them, except that she stated that, in her view, the breath demand that was made at thepolice station was unlawful and noted that the Crown “was obviously of the same view” because, just prior to the trial, the Crown stayedthe charges of drive impaired and refuse breathalyzer. [10] Regarding the accused’s position that his s. 9 Charter right was breached, the trial judge held that the police decision todetain him pursuant to s. 497 of the Code was justifiable and that he was not arbitrarily detained for the twelve hours he was in custody.

She stated that the accused had not discharged his onus of showing on a balance of probabilities that his s. 9 Charter right had beenbreached. Decision of the Appeal Judge [11] When the matter came before the appeal judge, the accused raised four issues. First, that the trial judge erred in findingthat the police had a reasonable suspicion that he had alcohol in his system at the time of the ASD demand. Second, that the ASD (andtherefore the opportunity to give a breath sample) was not provided forthwith and he should have been provided with the right to counselbefore being required to give a sample for the ASD.

Third, that the trial judge erred in finding that police complied with s. 487 of theCode and erred in placing the onus on the accused to establish a breach of s. 9 of the Charter. Finally, he argued that the trial judgeerred in her credibility assessments and application of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. [12] The appeal judge dismissed each of the grounds of appeal. He commenced his decision by stating that he wasreviewing the decision of the trial judge on the basis of s. 686(1)(a)(

i) of the Code, which provides that a verdict should be set aside onlywhere it is unreasonable or not supported by the evidence. While I agree that s. 686(1)(a)(

i) applies to the appeal overall, as will bediscussed later, it is not the standard of review applicable to discrete aspects of the appeal such as allegations of Charter breaches. [13] After setting out the basis on which he was reviewing the decision of the trial judge, the appeal judge then addressedeach issue raised, quoted the decision of the trial judge on each point, concluded that she made no palpable or overriding errors anddismissed the appeal. In essence, the appeal judge adopted the reasons of the trial judge.

Proposed Grounds of Appeal [14] In his application for leave to appeal, the accused raises two grounds: 1. that the appeal judge erred in law by failing to give reasons in dismissing the appeal of the accused; and 2. that the appeal judge erred in law by placing an onus on the accused to establish that police violated s. 497 of the Code. Test for Leave to Appeal [15] The three well-established criteria which must be met before leave will be granted on a

summary conviction appeal are: 1. the ground of appeal must involve a question of law alone; 2. even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance; and

3. the arguable matter must be of sufficient import to merit the attention of the full court. Under this criterion, one compelling reason would be that the issue raises matters that are of significance to the administration of justice ( R. v. R.W.M. , 2011 MBCA 74 at para. 23 , 270 Man.R. (2d) 29). The third criterion recognizes that access to this court constitutes a second-level appeal and, as such, it should be the exception and not the rule. See R. v. Jacob (J.A.) , 2012 MBCA 19 at para. 8 , 280 Man.R. (2d) 6; R. v. Mitchell (R.) , 2012 MBCA 59 at paras. 6-8 ; and R. v.

Steuart (N.) , 2014 MBCA 7 at para. 19 .) Position of the Accused [ 16 ] Regarding his first ground of appeal, the accused relies on the Supreme Court of Canada case of R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869, which stands for the authority that the reasons of a trial judge must be sufficient to permit appellate review for error. He submits that the same standard should be equally applicable to the reasons of a

summary conviction appeal judge and that there does not appear to be any appellate authority in Manitoba addressing the issue. He maintains that the appeal judge did not meet this test in that his reasons did not address any of the accused’s arguments in relation to the substance of the appeal nor did they contain any analysis of the law or explain why the accused’s

interpretation of it was wrong. [ 17 ] At the hearing of the application for leave to appeal the court raised the concern that sufficiency of reasons is not a stand-alone ground of appeal ( see Sheppard at para. 42 ). That is, sufficiency of reasons must be combined with another substantive ground of appeal. In response, counsel for the accused stated that the appeal judge did not address the errors the accused asserted were made by the trial judge concerning:

i) the lack of reasonable suspicion to demand an ASD sample; ii) that the ASD sample was not taken forthwith; and iii) that he was not provided his right to counsel at the roadside. He did not strenuously argue that the appeal judge was wrong in upholding the credibility findings made by the trial judge and, in my view, such a ground would not have merit in light of the reasons she gave for finding him to be unreliable and unbelievable. [ 18 ] Regarding the ground that the appeal judge erred in law by placing an onus on the accused to establish that police violated s. 497 of the Code , the accused notes that s. 497(1) of the Code provides that: Release from custody by peace officer 497

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496( a ), (

b) or ( c ), the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them. [ 19 ] The accused states that there is no remedy in the Code to address a violation of this section. Therefore, he raised the issue in the context of an alleged s. 9 Charter breach requesting a stay of proceedings as a remedy pursuant to s. 24(1) of the Charter .

While he acknowledges that s. 497(1.1) of the Code prevents a peace officer from releasing a person under s. 497(1) where, to do so, would be contrary to the public interest, he argues that the trial judge erred when she accepted the reasons offered by the police for detaining him and held that he had not shown, on a balance of probabilities, that his s. 9 Charter right had been breached. In this regard, the accused analogizes to case law regarding s. 8 of the Charter wherein there is a shifting burden of proof.

That is, there is jurisprudence that establishes that once an accused has shown that a search or seizure was warrantless, it is presumed to be unreasonable and the onus shifts to the Crown to show that it was reasonable.

Here, he argues that once it is shown that the accused was arrested without a warrant, the onus shifts to the Crown to establish that the detention was in the public interest pursuant to s. 497(1.1) . [ 20 ] Next, the accused argues that even if a person is legitimately detained pursuant to s. 497 of the Code , there is a positive duty on police to monitor the status of the accused on a regular basis to determine when it is no longer in the public interest to detain him or her.

The accused argues that did not happen in this case where he was simply locked up in Brandon Correctional Centre until the next day. [ 21 ] Finally, the accused states that this court has not considered the issue of detention of persons arrested without warrant pursuant to s. 497 of the Code and its interplay with the Charter . He states that a decision about whether to detain a person pursuant to s. 497 of the Code is an important fundamental determination made daily by police for which guidance is required.

The Position of the Crown [ 22 ] Respecting the first ground of appeal, the Crown states that the appeal judge made it clear that he reviewed the decision of the trial judge and adopted it on the basis that he agreed with her analysis and application of the law. Further, the appeal judge could find no error in the trial judge’s assessment of credibility and facts. The Crown asserts that there is no basis upon which to ask this court to establish guidelines as to what makes an appellate judge’s reasons sufficient.

[23] Regarding the second ground, the Crown disagrees with the accused that the issue of onus is unsettled when there is analleged violation of an accused’s s. 9 Charter right where an accused is detained pursuant to s. 497 of the Code. Rather, the Crownargues that the issue of onus is established in s. 497(3) of the Code which states: Consequences of non-release 497(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release theperson from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in theexecution of the peace officer’s duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peaceofficer did not comply with the requirements of subsection (1). Analysis 1) That the appeal judge erred in law by failing to give reasons in dismissing the appeal of the accused. [24] The accused argues that an appeal judge must provide reasons in the same manner as a trial judge in accordance withthe Supreme Court of Canada decision in Sheppard. He maintains that the appeal judge erred by simply adopting the reasons of the trialjudge without conducting an independent analysis of the issues he raised. [25] It is true that an appellate court, including a

summary conviction appeal court, must provide adequate reasons for itsdecisions (see Steuart; R. v. Owen, 2003 SCC 33 at para. 60, [2003] 1 S.C.R. 779; R. v. Schalla (K.T.), 2007 MBCA 104 at para. 16, 220Man.R. (2d) 69; and R. v. Minuskin (2003), (ON CA), 68 O.R. (3d) 577 at para. 4 (C.A.)). Where an appellate courtfails to give adequate reasons, this may constitute an error in law. However, a mere assertion that the appeal judge did not give adequatereasons does not necessarily rise to the standard required to constitute a question of law. [26] For example, the very same issue was raised on an application for leave to appeal a

summary conviction proceeding inthe case of Schalla. In that case, the accused was convicted of having care and control of a motor vehicle while impaired. The trialjudge rendered a comprehensive oral judgment convicting the accused. The appeal judge dismissed the appeal in a seven-paragraphjudgment setting out the facts of the case and the legal context, and concluded (at para. 8): …. “In reviewing the reasons of Provincial Court Judge Collerman, he does, in my view, express a good understanding of the authorities andadopts them.

Based on all the evidence presented and the authorities that have been referred to, the decision of the trial judge appears tobe correct and ought not to be interfered with. The appeal is therefore dismissed.” [27] In holding that agreement by the appeal judge that the trial judge “got it right” (at para. 23) did not raise a question oflaw, Freedman J.A. referred to and distinguished the case of Minuskin. He stated (at paras. 21-23): In my opinion, the reliance by the applicant on Minuskin is misplaced.

Minuskin is a case where the reasons of the intermediate appealjudge were found to be so inadequate that they prevented meaningful appellate review. That is not a conclusion which, in my opinion,could properly be reached about the reasons under consideration here, and there are two reasons why that is so. First, as in all cases, the reasons of the appeal judge must be considered in their entirety. The reasons of the appeal judge do not start andend with para. 7, quoted above (see para. 8). Rather, the entirety of his reasons must be taken into account.

They demonstrate that theappeal judge fully understood the factual context of the case before him. Equally importantly, they demonstrate that he fully appreciatedthe legal issues that had been raised by the applicant. His legal analysis, although concise, was nevertheless very clear and properlyfocussed on what was at that stage, in my view, the only real issue in the case .... .... Second, as in any Sheppard analysis, the reasons of the judge must be considered in context. The relevant context includes the reasonsof the trial judge.

In this particular case, those reasons are very thorough and deal comprehensively with the key factual and legal issues.

On appeal to the appeal judge, the applicant argued that the trial judge “got it wrong,” and in particular that it was mere speculation that the applicant’s vehicle could have accidentally been set in motion. The appeal judge disagreed. He obviously found the reasoning, analysis and conclusions of the trial judge to be sound, and he said so.

In the context of the detailed reasons of the trial judge, and the patently clear understanding of the factual and legal issues manifest in the reasons of the appeal judge, I see no reason why he had to say any more in his concluding paragraph than, just as he did say, that the trial judge got it right.

That is an approach often utilized by appellate judges in appropriate circumstances, when dismissing appeals; for example, “For the reasons given by the trial judge, with which we agree, the appeal is dismissed. ” [emphasis added] [ 28 ] In this case, as in Schalla , the reasons of the appeal judge show that he fully understood the factual context of the case and the legal issues raised. As was recently restated by the Supreme Court of Canada in R. v.

Vuradin , 2013 SCC 38 at paras. 12-13 , [2013] 2 S.C.R. 639, the sufficiency of reasons must be considered in the context of what the judge said and in the context of the record, the issues, and the submissions of counsel at trial. In light of the comprehensive reasons given by the trial judge, the appeal judge adopted her legal analysis. Therefore, this court is left with reviewing the reasons of the trial judge as adopted by the appeal judge to determine if there were errors made which could form a basis for granting leave to appeal on the issues raised. [ 29 ] In R. v.

Farrah (D.) , 2011 MBCA 49 , 268 Man.R. (2d) 112 , Chartier J.A. (as he then was) reviewed the several steps and related standards of appellate review of a trial judge’s determination of a Charter issue. First, the court reviews the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. The standard of review is correctness. Next, the evidentiary foundation forming the basis of the judge’s decision is reviewed to see if there was an error.

At this stage, deference is applied and, absent palpable and overriding error, the facts, as found by the trial judge, should not be disturbed. The appellate court then examines the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the legal test. In criminal law, the standard at this stage is correctness. [ 30 ] The above is the standard of review which should have been applied by the appeal judge to the constitutional issues raised.

Thus, my review of the trial judge’s reasons as adopted by the appeal judge will proceed on that basis. [ 31 ] As it pertains to this application for leave to appeal, the issues and resolutions are:

i) Was the evidence relied on by the police sufficient to ground reasonable suspicion? [ 32 ] The accused argued that mere admission of alcohol consumption itself was not sufficient in law to ground a demand pursuant to s. 254(2) (

b) of the Code . That issue was recently considered by this court in the case of R. v. Mitchell (R.) , 2013 MBCA 44 , 291 Man.R. (2d) 231 ( Mitchell (2013) ). In that case, it was determined that, where admission is relied on as evidence of consumption, it must be considered in the context of all of the facts of the case, and that it would be “rare, if ever, that there would be an admission of alcohol consumption with nothing else” (at para. 35). That analysis was properly applied in this case.

The trial judge considered the admission in the context of all of the factors leading to the ASD demand including the manner of driving, the accused’s argumentative behaviour, glossy eyes, and the fact that he had unopened cans of beer in the passenger side of the vehicle. The factual determinations she made were available to her on the evidence. In determining that the police had both a subjective and objective belief that the accused had alcohol in his body, she applied the law correctly.

The fact that police did not know the exact time of the alcohol consumption is not fatal (see Mitchell (2013) at paras. 30-34). Based on the above, in light of the fact that the question of law raised by the accused has been answered by this court in Mitchell (2013) and was properly applied by the trial judge, the adoption of her reasons by the appeal judge does not raise a question of law alone.

Therefore, I would dismiss the motion for leave to appeal on this ground. ii) Did the delay of six minutes between the original demand and the provision of the ASD breach the forthwith requirement, or should the accused have been transported to the nearby police station and been provided with his rights pursuant to s. 10(

b) of the Charter before the ASD was administered? [ 33 ] The trial judge did not find the accused’s argument compelling on this issue and noted that, “The Crown need not prove the ASD was immediately available to the police and short delays in order to have the device brought to the scene have been held not to take the demand outside Section 254(2) .” Further, she held that the delay did not require that the accused be provided with his s. 10(

b) Charter right prior to being required to provide a breath sample pursuant to the ASD demand. Her findings are consistent with the law as set out by the Supreme Court of Canada in R. v. Orbanski; R. v. Elias , 2005 SCC 37 , [2005] 2 S.C.R. 3 (also see Mitchell (2013) at para. 16 ). In relying on this ground of appeal, the accused stated that the trial judge did not consider whether the police were aware that an ASD device could be produced forthwith as set out in the legislation.

However, the evidence was that the police station was mere minutes away and it was clearly available to the police to infer that it would be at the scene forthwith, as was born out by the facts. [ 34 ] The law having been settled in Orbanski , the application of the law by the trial judge and adopted by the appeal judge does not raise a question of law alone and I would dismiss the accused’s application for leave to appeal on this ground. 2) That the appeal judge erred in law by placing an onus on the accused to establish that police violated s. 497 of the Code . [ 35 ] As earlier stated, the accused argues that the trial judge erred in finding that he had not established on a balance of probabilities that his right pursuant to s. 9 of the Charter was breached in light of his warrantless arrest and continued detention.

His argument is based on an alleged failure of police to comply with s. 497 of the Code . While I have reproduced portions of that

section earlier in these reasons, for the purpose of cohesiveness, it is reproduced in its entirety below:

Release from custody by peace officer 497

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496( a ), (

b) or ( c ), the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them. Exception 497(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. Where subsection (1) does not apply 497(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3). Consequences of non-release 497(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1). [ 36 ] In reaching the conclusion that the accused’s s. 9 Charter right was not breached, the trial judge noted that the evidence of the police was that the accused was in an emotional and agitated state, that there was evidence of consumption of alcohol and that the police subjectively believed the accused was intoxicated. She held that the police were justified in detaining the accused in the public interest pursuant to s. 497(1.1) of the Code . She then stated:

The length of detention was essentially overnight, and I find that it was not an excessive period of time in all the circumstances. There isnothing in the evidence I have accepted as credible, to support a finding that the police exercise of discretion here was capricious orunjustifiable. Ultimately, the accused bears the burden of establishing a

Section 9 Charter breach on a balance of probabilities, and hehas failed to do so here. …. [emphasis added] [37] At his

summary conviction appeal the accused argued that, having proven that he was arrested and detained without awarrant, a presumption of arbitrariness arose, thereby shifting the burden to the Crown to show that his continued detention was notarbitrary. In upholding the trial judge’s statement that the onus was on the accused to prove a breach of s. 9 of the Charter, the appealjudge referred to R. v. Rose, 2008 ABQB 111, 65 M.V.R. (5th) 98. In that case, the accused argued that there was no evidence that hisovernight detention was in the public interest.

In rejecting the accused’s argument, Verville J. stated (at para. 14): However, the onus was on the Appellant on the voir dire to establish a Charter breach.

Therefore, in my view the proper question iswhether the Appellant, faced with the officer’s explanation as to why she decided to lodge him in cells, succeeded in establishing on abalance of probabilities that the public interest did not require his continued detention on the basis that he was able to care for himselfand did not represent a risk to himself or others. [38] It should be noted that, in Rose, the issue of shifting burdens was not raised and, therefore, the decision did not containconsiderable analysis on the point. [39] In the context of s. 8 of the Charter in R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, the Supreme Court ofCanada found that, “A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which thesearch was carried out is reasonable” (at p. 278). In this case, the accused does not dispute the applicable law, but rather argues that itwas applied in an unlawful and, therefore, arbitrary fashion. [40] In R. v. Hass (2005), (ON CA), 76 O.R. (3d) 737 (C.A.), leave to appeal to the S.C.C. dismissed,[2005] S.C.C.A.

No. 423 (QL), the Ontario Court of Appeal held that, where the accused raises a s. 8 Charter objection on the basis thata search or seizure was conducted without warrant, the onus of proof shifts to the Crown to show it was reasonable on a balance ofprobabilities. In justifying this conclusion, the court held that, to require the accused to demonstrate the unreasonableness of the seizure“ignores the reality that the Crown is in the best position to know how and why the seizure took place” (at para. 37).

However, it shouldbe noted that, in Hass, the Crown called no evidence regarding the reasonableness of the officer’s belief that the accused’s ability tooperate a motor vehicle was impaired by alcohol, but simply relied on the argument that the onus was on the accused to prove a Charterbreach. In contrast, in this case, the police were questioned regarding their reasons for detaining the accused. [41] Nevertheless, the accused raises a question of law.

In my view, his argument that an analogy can be made between ss. 8and 9 Charter analyses with respect to a shifting onus raises an arguable case of substance that is of sufficient import to merit theattention of the full court. As I will be granting leave, my reasons will be succinct. Suffice it to say that the Crown at the

summaryconviction appeal (not the same as in this proceeding) stated that this same issue had been raised approximately 40 times in theProvincial Court. Results have varied. While I realize that determinations of arbitrary detention in this context are highly fact driven,this is an area of law that affects the administration of justice on a daily basis. In my view, the issues raised go beyond the facts of thisparticular case, and an appeal will allow this court to provide at least some guidance in analyzing arbitrary detention in the context ofs. 497 of the Code.

Conclusion [42] An extension to apply for leave to appeal is granted. On the first ground of appeal, that the reasons of the appeal judgewere insufficient, I dismiss the motion for leave to appeal. [43] On the second ground, I grant leave to appeal on the following questions of law: 1. Did the appeal judge err by concluding that, where an accused alleges a breach of s. 9 of the Charter resulting from awarrantless arrest and detention pursuant to s. 497 of the Code, the onus is on the accused to show his detention was arbitrary? 2.

Did the appeal judge err by holding that the continued detention of the accused was justified? What are the factors to considerand standards to be applied in continuing the detention of an accused on the ground that it is “necessary in the public interest”? J.A.