R. v. Hernandez, 2013 ONSC 4760

CITATION : R. v. Hernandez, 2013 ONSC 4760 GUELPH COURT FILE NO.: 11/80 DATE: 20130716 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) PAMELA BORGHESAN , for the Respondent/Crown ) Respondent ) ) - and - ) ) ) JUAN ANTONIO HERNANDEZ ) ) ) DAVID BURKE , for the Appellant ) Appellant ) ) ) ) HEARD: April 11, 2013 [On appeal from the judgment of the Honourable N.S. Douglas, dated November 7, 2011] DURNO, J. [ 1 ] Juan Antonio Hernandez was stopped driving his car for a speeding infraction in Guelph. The officer noted indicia of impairment and made a roadside breath demand. Mr.

Hernandez’s breath was analyzed as a ‘fail’ and he was arrested for impaired operation and driving having consumed excess alcohol. [ 2 ] At the station he provided two breath samples of 200 millilitres of alcohol in 100 milliliters of blood, with the last sample given at 3:41 a.m. He was held by police in a jail cell until his release at 11:58 a.m., 8 hours and 17 minutes later. [ 3 ] The arresting officer said he never asked Mr. Hernandez if there was someone who could come and get him. The officer in charge of the station from 7:00 a.m. on that morning proceeded on the bases Mr.

Hernandez was from Kitchener and had no one to pick him up. That officer knew the blood alcohol reading and used the standard 15 milligrams loss per hour in determining when the appellant would be released. [ 4 ] At his trial for impaired operation and driving having consumed excess alcohol Mr. Hernandez sought to stay the proceedings pursuant to s. 24 (1) of the Charter because his right to be free from arbitrary detention was breached when he was held in

jail for over 8 hours after providing the last breath sample. [ 5 ] The trial judge dismissed the application. The appellant appeals contending His Honour erred in failing to stay the charges. [ 6 ] For the following reasons the appeal is dismissed. The Evidence [ 7 ] Constable Waechter, the arresting officer, stopped the appellant for speeding. At the roadside, he noticed the appellant had bloodshot and glassy eyes. There was an odour of alcohol on the appellant’s breath. P.C. Waechter testified that at the roadside the appellant was too impaired to open the mouthpiece.

When the officer was reading the ASD demand from a card, the appellant asked him why he was reading it and if he was stupid. [ 8 ] After the appellant provided his breath samples, P.C. Waechter lodged him in the cells at 4:15 a.m., noting nothing unusual about the appellant in terms of his walking or talking. He did not ask the appellant if he had someone to pick him up at the station. The appellant was being cocky, fairly difficult, belligerent, non-cooperative, ignorant and arrogant. The officer denied that he brought the appellant release papers because he did not release persons from custody.

The officer-in-charge decided when persons were released. The arresting officer’s part was over when he booked off duty at 5:30 a.m. [ 9 ] P.C. Waechter denied that he became impatient with the appellant at the station after the breath tests were taken and ripped a paper out of his hands telling him he could stay in custody until he did sign it. The officer was shown the Certificate of Analysis that he tried to serve on the appellant but he refused to sign it. [ 10 ] Sergeant Karavelus came on duty at 7:00 a.m. and was told why the appellant was in custody.

He was told the blood alcohol levels that were obtained from the Intoxilyzer which had a bearing on when the appellant was released. Sgt. Karavelus said that: … given the condition that he was in at the time of his arrest which I was advised was approximately 4:00 a.m. that my decision on the length of time that I held Mr. Hernandez in custody until I felt that he was capable of taking care of himself and his blood alcohol concentration had come down to a more reasonable amount. He had no one to release him to at that time that I was aware of. [ 11 ] The officer was also a qualified Intoxilyzer operator.

He said impairment starts at 50 milligrams of alcohol, in his opinion 200 was a very high amount for a lot of people. An average person would lose 15 milligrams an hour.

Given the appellant’s condition when the officer went to see the appellant when he first came on duty, he decided it was “necessary for him to remain for a little longer in order for his concentration – his abilities of impairment to decrease” although he could not recall the contents of his first conversation with the appellant. [ 12 ] When asked what the detainee needs to know when released, Sergeant Karavelus said he had to understand the promise to appear and for it to be safe to release him.

If he released him and he was still not in a condition to be released and something happened, he was going to be responsible for him. His duty was to make sure the appellant’s safety was also paramount and taken care of as well. The appellant was released at 11:58 a.m. [ 13 ] In cross-examination, the officer said the appellant’s safety was one of his main concerns at those readings. Shortly after 7:00 a.m. he would still have been around 145 milligrams of alcohol in 100 milliliters of blood.

When asked if it wasn’t just a general issue about the appellant’s blood alcohol level as opposed to his actual condition, the officer said it was the appellant’s safety of knowing about his blood alcohol, impairment starts at 50 and he has nobody to come to take care of him or release him to. [ 14 ] While he never asked the appellant if he had anyone to come to get him, when Sergeant Karavelus started his information was that he had nobody to pick him up.

He knew that when the appellant was released he went on his own, nobody was there to pick him up. [ 15 ] The appellant testified that he was “kind of cocky” with the arresting officer. After he had given the breath samples, he was taken to a room where Constable Waechter asked him to sign a document, saying he would be out in a couple of hours. When he went to read it, the officer snatched it away from him and said, “What the fuck did I just say?

Sign the paper and you’ll be out in a couple of hours.” The appellant said he would but when he tried to read it quickly the officer snatched it away again and repeated his comments. When the appellant said he was not going to sign anything without reading it, the officer got mad and threw him in the cells. Fifteen minutes later, the officer came back saying look asshole, I got you a 90 day suspension on your license. The officer said he was going to make sure he stayed there as long as possible. [ 16 ] The appellant said he only spoke to Sergeant Karavelus when he was released.

After he was put into the cells, another officer told him that he would be out around 6:00 a.m. but Constable Waechter called out to him that the appellant was staying later. [ 17 ] The appellant testified that his sister or brother-in-law would have been available to come to the station to pick him up that night but no one asked him if he had anyone to pick him up. [ 18 ] In cross-examination, the appellant denied that he was “pretty drunk” but admitted that he was drunk. He then said he wouldn’t say drunk, he had a couple of drinks.

When he was being cocky to the officers he was only reacting to the way they were treating him. When asked what he meant by a couple of drunks he replied, “A couple drinks.” He could not tell how much he had to drink. The Reasons of the Trial Judge [ 19 ] The trial judge was impressed with the evidence of Sergeant Karavelus and, while lacking in detail, he found Constable

Waechter’s evidence was accurate where he denied allegations put to him in cross-examination. His Honour was not impressed with theappellant’s evidence, finding him evasive in relation to the amount he had consumed and that it was “so evasive on the central issue towhy he was kept in custody because he was intoxicated that I reject his evidence.” [20] In examining R. v. Price (2010), 2010 ONSC 1898 , 94 M.V.R. (5th) 23, the trial judge noted that even in that casewhere the officer focused solely on the readings, the breach was regarded as minor.

He continued: To argue that this was the clearest of cases for a stay in my judgment is a misapprehension and misunderstanding of whenstays should be granted. Languishing in a jail cell for eight hours. Well, when you blow 200 and you have that much alcohol in yoursystem which is a lot more than the accused seems to think he had – says he had, what do you expect but to be put in handcuffs and takento the station and put into a jail cell? That’s what happens when you break the law if that’s what he did.

And so the police in coming to the conclusion that he had so much alcohol in his system that he would be a danger tohimself and to the public and the police officer would be responsible if he let him out and something happened, he articulated all that. He articulated – at least Sergeant Karavelus did – that he was told that the accused was from out of town and that he didn’t have anybodyto pick him up. That’s what Sergeant Karavelus was acting on. The accused was checked on every half hour and the last reading justbefore four o’clock, six minutes to four was two hundred milligrams of alcohol.

Well, the limit is 80. The aggravating is 160 and he had 200. And he’s released eight hours later. I wouldn’t exactly callthat languishing for no reason. And if there is a breach here and I’m not satisfied that there is it would be of a minor nature. It would bea judgment call on the part of the police officer whose evidence I accepted and thought he was acting very reasonably. And does –second to armchair quarterbacking that and saying well, no he should have been released a few hours later or he should have been asked.

The Price case stands for the proposition as I understand it, an analysis of all the relevant factors, whether there was anybody availableto pick him up. The accused didn’t offer that. And the accused certainly has some responsibility in that regard. And this breach if – ifthere was a breach, I’, sorry, this breach in Price was categorized as a minor breach and you don’t even have that in my view. And sotherefore the application is dismissed. The Position of the Parties [21] Mr. Hernandez contends the trial judge erred in failing to stay the proceedings.

In doing so, as was the case at trial, he relieson Price, a judgment upon which leave to appeal was refused. Accordingly, that judgment has not been affirmed by the Court of Appeal. The appellant contends that applying the officer-in-charge erred when he relied solely on the blood alcohol readings to detain theappellant, that applying the Price criteria the appellant should have been released earlier, that he was arbitrarily detained and that thepolice have an obligation to make inquiries whether there is a responsible person to drive the accused home. [22] Ms.

Borghesan submits the trial judge did not err in failing to stay the proceedings. In detaining the appellant, the officer-in-charge relied upon a series of factors that justified his continued detention. Analysis [23] The facts in Price are similar but have additional elements that are not present here. Price was held for 7 hours. There wasevidence his wife could have come to the station to pick him up as he lived in the general area. The trial judge had found that assumingthere was a s. 9 breach, it was a minor one and refused to stay the proceedings.

However, he granted a remedy under s. 24(1) based onthe breach and imposed a time served sentence for the 7 hours instead on the minimum monetary fine. [24] On appeal, I found the findings of fact were open to the trial judge to make, that assuming His Honour did find a breach, therewas evidence to support that conclusion and dismissed the appeal. Of note, as the Court of Appeal had done in R. v. Iseler (2009), (ON CA), 190 C.C.C. (3d) 11, the trial judge in Price considered that the breach was after the commission of the offenceand gathering of evidence so it did not relate to the gathering of evidence.

Accordingly, the over-holding should not have resulted in astay of proceedings. I found that was a conclusion that was open to His Honour to reach. [25] While the trial judge found the decision to hold Price was based on relevant considerations, the problem was that it was focusedtoo narrowly as the officer did not consider alternatives to detention and permitted the blood alcohol level to preclude consideration ofother options.

Without a final determination from the Court of Appeal, I concluded that permitting the blood alcohol level to be the soledetermining factor was too narrow a focus, the officer was required to consider all the circumstances and provided the following non-exhaustive list of factors to be considered at para. 93 of the judgment: (

a) the accused’s blood alcohol level; (

b) whether the accused was charged with impaired operation; (

c) his or her level of comprehension;

(

d) that the accused is prohibited by statute from driving a motor vehicle (the automatic administrative license suspension); (

e) that the accused’s vehicle would be impounded; (

f) whether there was a responsible person to pick up the accused although the officer-in-charge has no authority to bind theresponsible person as a surety would be bound; (

g) whether the accused had a criminal record and if so, its contents; (

h) whether the accused had outstanding charges; (

i) his or her attitude, and (

j) that he or she had been drinking and driving and had thereby recently exhibited poor judgment. [26] It was only after an objective consideration of those factors and any others deemed relevant that the officer-in-charge couldmake an informed decision whether to release.

If after a consideration of all the factors, the officer determines that the blood alcohollevel should be given primary weight in the context of all the circumstances, there is no breach. [27] As the trial judge rejected the appellant’s evidence about the ulterior motive of the police for detaining him, the considerationof whether the trial judge erred in finding no breach of s. 9 is determined on the police evidence. [28] There are important distinguishing factors in this appeal. First, in Price it was argued that the over-holding was a systemicproblem in Peel and cases many years before were relied upon.

While the trial judge and I had concerns for the prevalence of thepractice, the trial judge found the systemic problem was not established. That would be an important consideration. Here, there is noevidence of systemic problems in this area. [29] Second, I am not persuaded this record supports the submission that the officer-in-charge relied solely on the blood alcoholreadings. While it is apparent that the officer-in-charge relied very heavily on the readings, he also spoke of the appellant’s conditionwhen he spoke to him and that it was his understanding that he had no one to drive him home.

The evidence is clear that the appellantnever told anyone that night that he could have his sister or brother-in-law come to get him. Since the trial judge accepted SergeantKaravelus’ evidence, it is apparent His Honour believed the officer honestly thought the appellant had no one to drive him home. Thisrecord does not support the submission the officer-in-charge was guided solely by the readings. [30] While not articulated by the police evidence, applying the factors listed in Price, there were ample bases upon which to holdthe appellant.

He was charged with impaired operation, his reading was 200, over two and one half times the legal limit, he wasbelligerent, arrogant and ignorant with the arresting officer, he did not live in the jurisdiction in which he was charged and subject to theduty to inquire issue, there was no evidence he had a ride available. His attitude was abysmal and he had been driving with over threetimes the legal limit. On those bases, I am not persuaded the trial judge erred in finding there was no breach.

In addition, from a purelyobjective analysis of the factors, there was sound bases for holding the appellant. [31] If I am wrong in that finding, I am not persuaded these facts reveal the clearest of cases that would merit a stay. R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411. Given the Court of Appeal cases referenced in Price and Price, I am notpersuaded there should be a stay even if there was a breach.

Are the police required to make inquiries whether a responsible person is available todrive the accused home? [32] The appellant says the police are obliged to 1) make inquiries of the accused whether there is a responsible person who coulddrive them home and 2) facilitate the transportation. [33] The Crown submits there are no such obligations on the police. Analysis [34]

Section 498 of the Criminal Code provides in the relevant portions that when a person, such as the appellant, is taken intocustody the officer-in-charge shall, as soon as practicable, release the person except if the officer-in-charge on reasonable groundsbelieves that it is necessary in the public interest that the person be detained having regard to all the circumstances including preventing

the continuation or repetition of the offence or the commission of another offence. [35] In Price, I found the officer-in-charge had to consider all the circumstances and not focus solely on the readings although ifafter considering all the circumstances, the officer relied primarily on the readings, there was no breach. [36] In light of the above two paragraphs, I am not persuaded that there is a duty on the police to make inquiries whether there is aresponsible person to drive the accused home in every case. An examination of the other relevant factors may preclude anyconsideration of release.

For example, the accused may have a series of drinking and driving convictions or may be so ill from drinkingthat to release would not be responsible. [37] There will be cases, where the officer-in-charge would be complying with the “all the circumstances” criteria of s. 498 byasking the question. That would not result in the accused person’s release.

It would be a factor to consider along with the others notedearlier and any other relevant consideration. [38] As regards the suggested duty to facilitate transportation, if that means making a phone call or permitting the accused to make aphone call, that would be a matter within the discretion of the officer. In most cases, it would seem to be a reasonable request. If theappellant is suggesting that the police have a duty to arrange transportation or to conduct a search for transportation, I disagree. R. v.Prentice 2009 ONCJ 708 , [2009] O.J.

No. 6001 (C.J.) at para. 42 There is no such obligation on the police. Conclusion [39] The appeal is dismissed. ___________________________ DURNO, J. Released: July 16, 2013 CITATION: R. v. Hernandez, 2013 ONSC 4760 GUELPH COURT FILE NO.: 11/80 DATE: 20130716

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent and – JUAN ANTONIO HERNANDEZ Applicant REASONS FOR JUDGMENT [On appeal from the judgment of the Honourable N.S. Douglas, dated November 7, 2011] DURNO, J. Released: July 16, 2013