R. v. Hardy (S.R.), 2015 MBCA 51

Citation: R. v. Hardy (S.R.), 2015 MBCA 51 Date: 20150514 Docket: AR14-30-08159 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : HER MAJESTY THE QUEEN ) M. Wasyliw ) for the Appellant ) (Respondent) Respondent ) C. P. R. Murray ) for the Respondent - and - ) ) Appeal heard: SEAN ROBERT HARDY ) December 8, 2014 ) ) Judgment delivered: (Accused) (Appellant) Appellant ) May 14, 2015 CAMERON J.A. Introduction [ 1 ] The accused was charged with refusing to provide a breath sample by means of an approved screening device (ASD) contrary to s. 254(2) (

b) of the Criminal Code (the Code ). At trial, he asserted that the decision of the police to detain him in custody overnight constituted a breach of his right pursuant to s. 9 of the Canadian Charter of Rights and Freedoms (the Charter ) ( s. 9 ) not to be arbitrarily detained or imprisoned. He applied for a judicial stay pursuant to s. 24(1) of the Charter or, alternatively, exclusion of the police evidence regarding the refusal to provide a breath sample pursuant to s. 24(2) of the Charter . The trial judge dismissed his application. His appeal of that decision was dismissed by the

summary conviction appeal judge (the appeal judge). Having been granted leave, he now appeals to this court. [ 2 ] This appeal raises the issue of the allocation of the legal and evidential burdens between the accused and the Crown where an accused who has been detained pursuant to s. 497(1.1) of the Code ( s. 497(1.1) ) requests a Charter remedy on the basis that the detention was arbitrary. The jurisprudence and academic authorities often interchange the terms legal burden with persuasive burden and evidential burden with tactical burden.

However, throughout these reasons I will refer to the legal and evidential burdens. [ 3 ] This appeal also concerns the manner in which courts should approach an analysis of s. 497 of the Code ( s. 497 ) when considering the issue of arbitrary detention and imprisonment. [ 4 ] For the reasons that follow, I find that, in circumstances such as this, while a Crown evidential burden may become engaged in the course of a s. 9 application, the ultimate burden of proving the breach remains on the accused.

The circumstances under which detention may be justified are varied, contextual and require individual assessment in each case. [ 5 ] In this case, the trial judge correctly stated and applied the law. Her decision was adopted by the appeal judge. Therefore, I would not interfere with the trial judge’s determination that the overnight detention of the accused did not breach his s. 9 right to be free from arbitrary detention and imprisonment. For the following reasons, I would dismiss the appeal.

Overview of Facts and Earlier Proceedings [ 6 ] On the date of the incident, the police stopped the accused after having observed him driving in the dark without his headlights on and failing to stop at a stop sign. They observed him to have glossy eyes. The accused admitted that he had consumed two beers and police saw unopened cans of beer on the passenger side of the vehicle. The accused agreed to a demand to provide a sample of his breath suitable for testing by an ASD.

However, after a number of attempts the police determined that the accused was purposely failing to give an appropriate sample and arrested him. He was charged with disobeying a stop sign, improperly transporting

liquor and refusing to comply with a demand to provide a breath sample into an ASD. [ 7 ] The accused was transported to the police station where the police then charged him with driving impaired and made a demand that he provide a breathalyzer sample. After refusing to provide a breathalyzer sample he was charged accordingly. [1] The accused was detained in custody overnight in the Brandon Correctional Centre pursuant to s. 497(1.1) .

He was released the following morning, after having been detained approximately 12 hours. [ 8 ] At trial, the accused asserted that the decision to detain him overnight was not based on his level of intoxication, but rather, was intended as punishment for the fact that he refused to provide a breathalyzer sample at the police station. He argued that the decision to detain him failed to comply with s. 497 and therefore constituted a breach of s. 9 . [ 9 ] In convicting the accused, the trial judge rejected his evidence, finding it to be unreliable and not credible. She accepted the police evidence.

Regarding his position that the police detained him in breach of s. 9 , she stated (at paras. 67-69): There is no evidence in this case of any systemic abuse with regard to the application of

Section 497 . Rather, the evidence supports a finding that an individual assessment is made in each case with respect to the issue of release. That decision is not left solely in the hands of the investigating officer, but rather is subject to review by the supervising sergeant prior to implementation. There is ample evidence from credible police officers, some of which is corroborated by [the accused’s] own evidence, that [he] was in an emotional and agitated state. That he was belligerent and uncooperative with police.

There was evidence of consumption of alcohol and police formed a subjective belief the accused was intoxicated. Section 497(1.1) is not exhaustive and police clearly are to consider the totality of the circumstances related to an accused in assessing whether a public safety justification exists for detaining the accused. Here, as I have said, they were dealing with a highly emotional, uncooperative person they believed to be intoxicated and acting in a manner inconsistent with his own best interests. I can come to no conclusion other than that the police decision to lodge the accused in custody, pursuant to

Section 497 of [t]he Code , was justifiable. The length of detention was essentially overnight, and I find that it was not an excessive period of time in all the circumstances. There is nothing in the evidence I have accepted as credible, to support a finding that the police exercise of discretion here was capricious or unjustifiable. Ultimately, the accused bears the burden of establishing a

Section 9 [C]harter breach on a balance of probabilities, and he has failed to do so here. His own evidence was very unreliable … …. [emphasis added] [ 10 ] The accused appealed. In dismissing his appeal, the appeal judge adopted the reasons of the trial judge. Issues and Standard of Review [ 11 ] The appeal to this court is from the judgment of the appeal judge and not the trial judge (see R. v. Langlois (D.J.) , 2008 MBCA 72 , 228 Man.R. (2d) 256 ). However, because the appeal judge adopted the reasons of the trial judge, this court will review the substantive reasons of the trial judge. [ 12 ] In R. v.

Hardy , 2014 MBCA 52 , I granted the accused leave to appeal to this court on the two following questions of law (at para. 43): …. 1. Did the appeal judge err by concluding that, where an accused alleges a breach of s. 9 of the Charter resulting from a warrantless 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 consider and standards to be applied in continuing the detention of an accused on the ground that it is “necessary in the public interest”? [ 13 ] The above are questions of law to be reviewed on the standard of correctness ( see R. v. Shepherd , 2009 SCC 35 at para. 20 , [2009] 2 S.C.R. 527 ). [ 14 ] As to the decision made by the trial judge in this case, the appropriate review analysis is set out in R. v. Farrah (D.) , 2011 MBCA 49 , 268 Man.R. (2d) 112 . Namely, after determining that the legal issues were correctly stated and there was no

misdirection in law, the evidentiary foundation forming the basis of the judge’s decision is reviewed on a basis of overriding andpalpable error. Deference is applied to findings of fact and credibility. Finally, the appellate court examines the application of the legalprinciples 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 stageis correctness.

Analysis Question 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? The Provisions at Issue [15]

Section 9 of the Charter provides: Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned. [16] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada stated that the purpose of s. 9 “is toprotect individual liberty from unjustified state interference” (at para. 20). [17] A lawful detention is not arbitrary unless the law authorizing it is arbitrary.

On the other hand, a detention notauthorized by law is arbitrary and violates s. 9 (Grant at para. 54). [18] In clarifying the approach to be taken in a s. 9 analysis, the court in Grant referenced s. 8 of the Charter, stating (atpara. 56): This approach mirrors the framework developed for assessing unreasonable searches and seizures under s. 8 of the Charter. Under R. v.Collins, (SCC), [1987] 1 S.C.R. 265, and subsequent cases dealing with s. 8, a search must be authorized by law to bereasonable; the authorizing law must itself be reasonable; and the search must be carried out in a reasonable manner.

Similarly, it shouldnow be understood that for a detention to be non-arbitrary, it must be authorized by a law which is itself non-arbitrary. …. [19] In this case, the accused was detained pursuant to s. 497 which provides: 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 dealtwith 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.

[emphasis added] [20] The statutory authority in s. 497 to detain someone is limited to offences described in subss. 496(a), (

b) and (

c) of theCode. That is, indictable offences of absolute jurisdiction, hybrid offences and

summary conviction offences. It is a circumscribedstatutory authority. The offence for which the accused was convicted is a hybrid offence proceeded by way of

summary conviction bythe Crown. [21] The intent of s. 497 is to limit the amount of time spent by an accused person in detention before being released orbrought before a justice of the peace. See John A. Scollin, The Bail Reform Act: An Analysis of Amendments to the Criminal CodeRelated to Bail and Arrest (Toronto: The Carswell Company, 1972) at 6, for commentary on the previous s. 452(1), which was amendedby

An Act to amend the Criminal Code (victims of crime) and another Act in consequence, S.C. 1999, c. 25. The Positions of the Parties [22] The accused argues that where a s. 9 breach is alleged, once it has been shown that an accused has been arrested anddetained without warrant, any subsequent detention of that person must be presumed to be unreasonable and arbitrary. He argues that, asa result, the legal burden shifts to the Crown to prove that the detention is not arbitrary. [23] The Crown argues that the accused bears the legal burden to establish, on a balance of probabilities, a s. 9 breach.

Itstates that where an accused alleges that there were no reasonable grounds for his detention, an evidential burden may arise wherein theCrown must demonstrate reasonableness, but that this is not a legal burden. It maintains that the legal burden always rests with theaccused. Legal Burden v. Evidential Burden [24] The distinction between a legal burden and an evidential burden is explained by Sydney N. Lederman, Alan W. Bryant& Michelle K.

Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada, 2014), as follows (at paras. 3.7, 3.19,3.45, 3.47): The term “evidential burden” means that a party has the responsibility to insure that there is sufficient evidence of the existence or non-existence of a fact or of an issue on the record to pass the threshold test for that particular fact or issue. As Lord Devlin explained inJayasena v. R., [[1970] A.C. 618 (P.C.)] to satisfy an evidential burden a party is not required to prove anything … . . . . .

In contrast, the term “persuasive (legal) burden” means that a party has an obligation to prove or disprove a fact or issue to the criminalor civil standard. The failure to convince the trier of fact to the appropriate standard means that party will lose on that issue. …. Normally, the incidence of the evidential burden coincides with the legal burden of proof. …. The authorities and the jurisprudence often refer to the shifting of the evidential burden or the persuasive (legal) burden of proof.

Exceptfor the operation of presumptions of law or rebuttable statutory provisions, these burdens do not shift. .… An evidential or a persuasive burden may be conditional upon the discharge of an evidential burden by the opposite party. …. Also see The Hon. Mr. Justice S. Casey Hill, Prof. David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence,loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada, 2015) vol. 3 at para. 27:10. Application of Legal and Evidential Burdens in Charter Jurisprudence [25] In the Supreme Court of Canada decision of R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, Lamer J. (as hethen was) considered an allegation of a breach of s. 8 of the Charter. He held that the accused “bears the burden of persuading the courtthat her Charter rights or freedoms have been infringed or denied” (at p. 277) on a balance of probabilities. He continued to explain thatthe significance of the burden of persuasion means only that “in a case where the evidence does not establish whether or not theappellant’s rights were infringed, the court must conclude that they were not” (ibid.).

[26] The Supreme Court of Canada has expressed a preference for dealing with Charter applications on the basis of the factsand that, “A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on thefacts presented to it” (R. v. Smith, (SCC), [1989] 2 S.C.R. 1120 at 1132). [27] Having said that, the Supreme Court of Canada has also recognized certain limited exceptions to the allocation of thelegal burden in situations relating to the gathering of evidence. For example, in Hunter et al. v.

Southam Inc., (SCC),[1984] 2 S.C.R. 145, Dickson J., writing for a unanimous court, held that s. 8 of the Charter required that state searches be sanctioned byprior authorization (i.e., a search warrant). He then elaborated that a presumption of unreasonableness arises where it has been shownthat a search was conducted without a warrant, which would require “the party seeking to justify a warrantless search to rebut thispresumption of unreasonableness” (at p. 161). [28] In the context of a breath sample taken without warrant, in R. v.

Haas (T.) (2005), (ON CA), 201O.A.C. 52, leave to appeal to the S.C.C. dis’d, [2005] S.C.C.A. No. 423 (QL), the Ontario Court of Appeal held that, where an accusedmakes a s. 8 Charter application, the onus of proof shifts to the Crown to show the search was reasonable on a balance of probabilities. The court held that such a requirement was supported by statutory and policy considerations. Statutory justification is engaged becausethe evidence to prove reasonableness will normally be the same as that required by statute.

Policy considerations are engaged because anobligation for an accused to demonstrate unreasonableness ignores “the reality that the Crown is in the best position to know how andwhy the seizure took place” (at para. 37). [29] Another exception arises where, in certain circumstances, the Crown asserts waiver by an accused of the s. 10(

b) rightto counsel. See Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383; R. v. Ross, (SCC), [1989] 1S.C.R. 3; and R. v. Prosper, (SCC), [1994] 3 S.C.R. 236. [30] Conversely, other sections of the Charter have been interpreted not to shift the legal burden to the Crown, but rather,invoke an evidential burden. So, for example, despite Supreme Court of Canada jurisprudence indicating that the onus is on an accusedperson throughout in an application based on s. 7 of the Charter (see Canadian Foundation for Children, Youth and the Law v.

Canada(Attorney General, 2004 SCC 4 at para. 3, [2004] 1 S.C.R. 76), a review of the case law indicates that, in some circumstances, theCrown may be required to call evidence. [31] For instance, in “lost evidence” cases involving s. 7 of the Charter, the loss of evidence triggers an evidential duty onthe Crown to explain the loss (see R. v. La, (SCC), [1997] 2 S.C.R. 680; R. v. Berner (C.-A.), 2012 BCCA 466, 329B.C.A.C. 275, leave to appeal to S.C.C. ref’d, [2013] S.C.C.A.

No. 48 (QL)). [32] The allocation of the evidential burden to the Crown in the context of a s. 7 use of force application was recentlyexplained by Fraser C.J.A. in her dissenting reasons in R. v. Davis (P.W.), 2013 ABCA 15, 542 A.R. 100, rev’d 2014 SCC 4, [2014] 1S.C.R. 78[2] (at paras. 78-79): .... Once an accused has met the burden of establishing that the police used deadly force against him or her, this constitutes a prima faciebreach of s. 7 of the Charter.

The evidentiary burden then shifts to the Crown to prove that the force used was justified in thecircumstances. .... ... [I]t would be unfair to impose on an accused the burden of proving a negative, namely that the deadly force was not justified. Evidence of the subjective belief of the police officer falls squarely within the exclusive knowledge of the police officer and similarly,evidence as to what was considered reasonably necessary in the circumstances from an objective viewpoint may well be linked to policepractices and procedures.

This evidence is not within either the ready knowledge or control of an accused. Also see R. v. Hart, 2014 SCC 52 at para. 184, [2014] 2 S.C.R. 544. [33] Similarly, in cases involving a breach of s. 11(

b) of the Charter, the Supreme Court of Canada has held that, while theaccused has the ultimate burden of proof, an evidential burden to put forth evidence or argument by the Crown may arise depending onthe circumstances of each case. See Smith at p. 1132. The Legal and Evidentiary Burdens and

Section 9 Jurisprudence [34] In R. v. Suberu, 2009 SCC 33 at para. 28, [2009] 2 S.C.R. 460, the majority of the Supreme Court of Canada confirmedthat the legal burden in a claim of breach of s. 9 is on the claimant. This court has also held that the burden rests on the accused in a s. 9claim. (See R. v. C.R.H., 2003 MBCA 38, 173 Man.R. (2d) 113; R. v. Willis (R.), 2003 MBCA 54, 173 Man.R. (2d) 208, leave to appealto S.C.C. dis’d, [2003] S.C.C.A. No. 281 (QL); and R. v.

Schrenk (C.A.), 2010 MBCA 38 at para. 61, 255 Man.R. (2d) 12). [35] In the context of a detention pursuant to s. 497(1.1), the early Charter case of R. v. McIntosh (1984), 29 M.V.R. 50(B.C.C.A.) seemed to suggest that the burden was on the Crown, at the outset, to prove that the accused’s detention was justified under s.452 of the Code (the predecessor to s. 497). In that case the accused was placed in a cell around 10:00 p.m. due to his level ofintoxication. However, his blood alcohol level would have dropped below the prohibited level within five or six hours. Nonetheless, theaccused was held for 11 hours.

In dismissing the accused’s appeal of the finding that he was not arbitrarily detained, Esson J.A. stated(at p. 59):

It is common ground that the question whether the detention was arbitrary turns primarily upon whether it was justified by s. 452(1)(

f) ofthe Code … …. [36] He later held that the trial judge did not err in that he approached the matter on the basis that, “the Crown hadestablished that the conditions were met” (at p. 60). [37] However, since McIntosh, numerous appellate decisions have confirmed that the accused bears the legal burden ofproving an arbitrary detention in circumstances similar to this case. See for example R. v. Pashovitz (1987), (SK CA),59 Sask.R. 165 (C.A.) (intoxicated accused detained in cell overnight); R. v. Cutforth (1987), (AB CA), 81 A.R. 213(C.A.) (intoxicated accused detained for 12 hours); R. v.

Simms (A.P.), 2009 ABCA 260 at para. 26, 460 A.R. 215 (intoxicated accusedalleged police had duty to inform him that he could be released to a sober adult). [38] In Manitoba, in R. v. Weik (D.W.), 2012 MBQB 138 at para. 109, 279 Man.R. (2d) 38, the accused argued that he wasarbitrarily detained in custody for between five and six hours.

Joyal C.J.Q.B. specifically noted that it is the accused who bears theburden of establishing on a balance of probabilities the alleged s. 9 breach. [39] The accused has not convinced me that the circumstances of this case create a presumption of arbitrariness, therebyshifting the legal burden to the Crown such as in s. 8 Charter warrantless searches or Charter waiver cases.

Unlike those exceptions, inthis case the alleged breach is post-arrest, it does not involve circumstances where a breach may bear directly on the guilt or innocenceof an accused, and it does not involve evidence statutorily required for proof of an offence. [40] However, in certain circumstances where an accused raises a s. 9 argument which the Crown seeks to justify on thebasis of s. 497(1.1), an evidential burden may arise requiring the Crown to explain the reasons for the detention. [41] For example, in R. v.

Iseler (R.) (2004), (ON CA), 191 O.A.C. 80, the accused was held in a cell inthe police station for 11 hours. All of his attempts to communicate with those responsible for his incarceration were unsuccessful. Hisonly contact with the authorities was when, approximately one hour before his release, a police officer walked by and threw a sandwichinto his cell.

In that case, the court held that the trial judge erred in his application of the burden of proof stating (at para. 25): The appellant presented a prima facie case of arbitrary detention that, in my view, called for some answer by the Crown, particularly inview of its representation that the cellblock sergeant would be called. The Crown answered with the evidence of Sgt. McCaffery. Hisevidence was of no assistance. No other evidence was called.

In these circumstances, I do not see that there was any obligation on theappellant, as suggested by the trial judge, to locate and call the cellblock officer who was on duty between 5:00 a.m. and 2:30 p.m. Inmy view, the appellant had discharged his burden. [42] Thus, where an accused presents a prima facie case of arbitrary detention, an evidential burden arises for the Crown topresent evidence justifying the detention.

The evidential burden arises because, it is the police officers who have the exclusiveknowledge of the reasons for the detention. [43] In the context of s. 497(1.1), the Crown’s evidential burden is to adduce evidence as to the peace officer’s belief, onreasonable grounds, that detention is necessary on any of the grounds enunciated in the section. After considering all of the facts andcircumstances, including the objective reasonableness of the police officer’s subjective belief and any alternative or improper motive onthe part of the police, the court then decides whether a breach has been proven.

This is in contrast to placing a legal burden on theCrown which would dictate that, in the absence of any evidence having been called by the accused except for the fact that he wasarrested without warrant, the Crown would bear the legal burden of proving compliance with s. 9 in every case where an accused hasbeen detained. [44] In this case, the accused having shown that he was arrested without warrant and detained in a correctional facility for 12hours, the evidential burden shifted to the police/Crown to justify his detention pursuant to s. 497(1.1).

Question 2: Did the appeal judge err by holding that the continued detention of the accused was justified? What are the factors toconsider and standards to be applied in continuing the detention of an accused on the ground that it is “necessary in the publicinterest”? [45] Section 497(1.1) lists factors to be considered in the decision to detain.

These include the public interest, establishingidentity, securing and preserving evidence, prevention of continuation of the offence or of the commission of another offence, ensuringthe safety and security of the victim, as well as administrative concerns such as ensuring court attendance. [46] In this case, the appeal judge agreed with the trial judge’s determination that the accused was properly detained forreasons of public interest pursuant to s. 497(1.1)(a). [47] The accused argues that the decision to detain him was not properly assessed in the first instance and that it was for animproper purpose.

He also contends that he should have been given the opportunity to contact a sober third party to whom he could bereleased. Finally, he asserts that once detained, he should have been monitored to determine whether the initial conditions for detentioncontinued to exist.

[48] The Crown maintains that the language of s. 497(1.1) permits a broad range of considerations. It states that publicinterest includes the safety of the general public, the police and the accused. It contends that the inclusion of administrative concernsevidenced in the legislation also supports consideration of other factors under the public interest, such as the ability and willingness of anaccused to participate in and understand the process to which he or she is subject.

It maintains that the trial judge carefully consideredthe reasons given by the police for their decision to detain, which she accepted, in concluding that the accused’s detention was justifiedpursuant to s. 497(1.1). [49] The decision to detain is highly contextual. There are numerous factors that courts have considered in deciding whetherto detain an arrestee. In Weik, the court observed (at para. 83): Various cases have addressed the issue of a prolonged detention following an investigation.

For example, a specific policy to detain allimpaired drivers post-investigation until an appropriate level of sobriety is met may offend s. 9 of the Charter. Nonetheless, if thepolice are able to articulate a basis for the ongoing detention post-investigation, the detention will not be arbitrary. See R. v. Sapusak(D.) (1998), 79 O.T.C. 236 (Gen. Div.), affd. [1998] O.A.C. Uned. 439; 40 W.C.B. (2d) 191 (C.A.); R. v. Coulter (M.), [2001] O.T.C.1005 (Sup. Ct.); R. v. Tugnum (D.M.), 2002 BCSC 1572 , [2002] B.C.T.C. 1572; 33 M.V.R. (4th) 113; 2002 BCSC 1572; andR. v.

Christianson (L.A.), 2003 BCSC 1824 , [2003] B.C.T.C. 1824; 44 M.V.R. (4th) 167; 2003 BCSC 1824. A prolongeddetention may be justifiable as “necessary in the public interest” as long as the police undertake a reasonable assessment of the sobrietyof the accused and his or her suitability for release. That evaluation may not have to be extremely involved, sophisticated or lengthy. Itshould however involve an assessment of his functional sobriety or the consideration of other circumstances (including his ability to bereleased to an available and responsible person) and not focus exclusively on a breathalyser result.

See R. v. Price (D.), [2010] O.T.C.Uned. 1898; 2010 ONSC 1898 , 2010 CarswellOnt 2369 (Sup. Ct.); R. v. De Lima (2010), 2010 ONCJ 230 , 79 C.R.(6th) 82; 2010 ONCJ 230; and R. v. Hall (D.E.) (2010), 2010 SKPC 133 , 365 Sask.R. 175; 2010 SKPC 133. [50] Courts have also considered the safety and well being of an accused (R. v. Bridge, (15 April 2010) Gimli (Man. Prov.Ct.), cited in R. v.

Barron (W.D.), 2011 MBPC 37 at para. 21 (QL)) as constituting a factor to consider when assessing the public interest. [51] Additionally, while the fact that an accused was found to be belligerent for a relatively short period of time while inpolice custody has been held not to justify detention (R. v. James, 2011 NBPC 1 at paras. 63, 66, 8 M.V.R. (6th) 253), other cases haveheld that the attitude of an accused can be an important factor in considering the public interest. Thus, in R. v.

Zacharias (S.), 2012SKQB 491, 407 Sask.R. 295, the court held that it was in the public interest to detain the accused who was “drunk, unreasonable, unco-operative, combative, belligerent, threatening and abusive to the police” in order to give him the opportunity “to sober up, calm downand get in control of himself” (at para. 12). [52] In this case, the trial judge accepted the police evidence that the accused was in an “emotional and agitated state,”“belligerent and uncooperative with police,” that there was “evidence of consumption of alcohol and police formed a subjective belief theaccused was intoxicated” and the accused was “acting in a manner inconsistent with his own best interests” (at para. 68).

She rejectedthe accused’s evidence, including his evidence that the police threatened him with jail overnight if he did not comply with thebreathalyzer demand. This led to her determination that the detention was lawful pursuant to s. 497(1.1).

These are findings of fact andin my view, she did not commit palpable and overriding error and the above conclusions were open to her on the evidence. [53] Regarding the accused’s contention that the police have a positive legal obligation to consider release to a sober thirdparty, the Crown agrees that in some cases it might be possible to release an accused to a sober third party.

However, it asserts that thereis no positive obligation to do so, and failure to canvass this option in any given case does not of necessity amount to an unlawfuldetention. [54] In my view, there is no bright line legal obligation to consider release to a sober third party in every instance, as arguedby the accused. Each case must be determined on its own facts. As was stated in Weik, the police obligation is to “undertake areasonable assessment of the sobriety of the accused and his or her suitability for release” (at para. 83).

In some circumstances, that mayinclude his ability to be released to a responsible sober third party. [55] Of note, in Simms, one of the grounds of appeal raised by the accused was whether the trial proceedings “place[d] anonus on the [accused] and his family to request the [accused’s] release.” While this ground was later disclaimed, the Alberta Court ofAppeal nevertheless stated (at paras. 19-20): That precise ground of appeal was not argued orally, and indeed was expressly disclaimed before us.

Counsel for the accused (appellant)agreed that the constable had no duty to suggest anything to anyone, still less to phone and inquire whether a relative or friend would besuitable and willing to come down, watch over the detained man (the accused), and take him home or to some other safe place. Counsel’s disclaimer was clearly proper. The decision to detain or not must be based on what are then present known facts. Alcoholintoxication wears off over some hours, as the constable testified here. Whether it is even safe to release the detainee into the custody ofa lay person may well change in a few hours.

Whether the intoxicated man is wakeful or sleepy, calm or combative, similarly is likely tochange. Monitoring those changes and finding and making suitable arrangements with friends or relatives, could well be more complexand time consuming than one might first assume.

And also see Barron at para. 25. [56] For the same reasons, I also disagree that there is a positive legal obligation on the police to allow an accused anopportunity to phone and look for someone to pick him or her up. The analysis must be contextual and fact driven. [57] In this case, despite the accused’s evidence at trial that he told the police that his common-law spouse would have beenwilling to take custody of him, the arresting officer had no recall of such a conversation.

This is understandable on the basis that the trialjudge accepted the evidence of one of the police officers that she “wasn’t able to have a calm conversation” with the accused, that he was“extremely argumentative” and that police were “unable to even get a sentence [in] without him talking over [them].” Indeed, theaccused in his testimony agreed that he “might have cut [the police officer] off a couple times.” [58] Moreover, at the trial, the accused testified that it was the police who offered to bring him home to his girlfriend if hegave a breath sample and not that he had suggested that she could pick him up. [59] I also note that the police were not cross-examined about whether they would have considered release to a sober adultor if it would have been possible or appropriate under the circumstances. [60] Finally, the accused contends that even if his detention was initially justified pursuant to s. 497(1.1), there must beongoing evaluation to determine whether those conditions continue to exist or whether there had been a change of circumstances suchthat s. 497(1) becomes engaged, mandating the release of the accused “as soon as practicable.” [61] The Crown asserts that once a decision has been made to detain pursuant to s. 497(1.1), s. 497(1) becomes inoperativeand release is then governed by s. 503 of the Code, requiring a detained person to be brought before a magistrate within twenty-fourhours. [62] To start, there is nothing in s. 497 that requires that an accused be monitored during the 24 hours that he or she isdetained prior to taking him or her before a justice.

This issue was specifically considered in Zacharias, where the court concluded (atpara. 18): The trial judge rationalized her decision to substitute her assessment for the judgment of the police officers by finding at page 245 of thetrial transcript that the requirement that the person be released as soon as practicable requires an ongoing assessment of the person andthen concluding that in the absence of an ongoing assessment the police could not reasonably have believed the accused’s continuingdetention was in the public interest.

That with respect is wrong in logic and fails to consider the situation practically. The trial judge hadno basis in law to impose on the police an ongoing and continuous reassessment process. The police are entitled to make assessmentsthat because of the circumstances surrounding an individual case that the individual should not be released for a period of time. Withinthat period of time there is no logical reason to impose on the police an obligation to continuously reassess. Section 497(1.1)(a)authorizes a peace officer to detain an intoxicated person until he sobers up: R. v.

Pashovitz (1987), (SK CA), 59Sask.R. 165, 59 C.R. (3d) 396 (C.A.); R. v. Sapusak, [1998] O.J. No. 4148 (QL) (Ont. C.A.). Beyond being impaired the accused herewas in a very agitated state and was threatening harm. Where the public interest is at risk the police cannot be faulted for being cautious. [63] In my view, the above statement is correct.

Furthermore, if a person is deemed acceptable for release prior to the expiryof 24 hours, this does not now mean that s. 497(1) comes into play mandating release “as soon as practicable.” On the other hand, itdoes not mean that once it is determined that an accused person should be detained pursuant to s. 497(1.1), the detention mustnecessarily last until the accused is brought before a magistrate pursuant to s. 503.

As previously mentioned, the police must make anindividual assessment based on all of the circumstances in each case. [64] Additionally, the above does not prevent an accused from calling evidence that, in his or her particular case, the lengthof the holding or continued detention was arbitrary. In McIntosh, after having found that the police had not arbitrarily detained theaccused, Esson J.A. stated (at p. 62): I should not be understood as suggesting that a detention originally not arbitrary cannot become arbitrary through some change ofcircumstances.

Clearly it can, but something more than the mere fact that the blood alcohol level had dropped below the forbidden levelwould be needed. The finding of arbitrariness based only on that conclusion is, therefore, wrong in law.

As the detention was notarbitrary, there was no basis for invoking s. 24. [65] When an assertion of arbitrary detention by way of overholding is made, the analysis may include, among other things,an assessment of the nature and frequency of contact that the accused had with the authorities as occurred in Iseler. [66] In this case, there was no evidence called by the accused other than the fact that he was held overnight. In my view, inlight of her credibility findings regarding the accused, which I have earlier described, the trial judge held that the police decision todetain him overnight was not unreasonable.

A palpable and overriding error has not been demonstrated. Remedy [67] Having found that no error was committed and therefore a s. 9 breach has not been established, there is no need toconsider the appropriate remedy. However, I would note that appellate jurisprudence has consistently held that a judicial stay of

proceedings is not an appropriate remedy in circumstances such as this, where the alleged conduct is post-offence and post- investigation. See Iseler , Cutforth , and R. v. Salisbury (T.J.) , 2011 SKQB 153 , 372 Sask.R. 242 . In Manitoba, there has not been a case where a charge has been judicially stayed based on a finding of a s. 9 breach as a result of arbitrary post-offence detention. [ 68 ] In my view, a declaration of a Charter breach as occurred in R. v. Osiowy (D.L.) , 2007 MBPC 61 , 221 Man.R. (2d) 222 , or a sentence reduction as recognized in R. v.

Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206 , are more appropriate remedies. In fact, in Nasogaluak , the Supreme Court of Canada recognized that the sentencing process is such that (at para. 55): … [A] sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach.

Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code , there is simply no need to turn to the Charter for a remedy. …. [emphasis added] Decision [ 69 ] For all of the above reasons, I find no error in the decision of the trial judge as adopted by the appeal judge and I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.