A man faced an ‘over 80’ charge after being pulled over for speeding on the Gardiner Expressway in Toronto. Before issuing a speeding ticket, the officer asked the driver to accompany him to his cruiser where the man was lectured at length about careless driving. Upon exiting the cruiser, the officer detected the smell of alcohol on the man, which led to his arrest on an alcohol-related charge. In the 2016 trial on the ‘over 80’ charge, the key issue for the judge to determine was whether the driver was arbitrarily detained and his Charter rights were breached while he was being held in the cruiser.
The circumstances of the arrest are as follows. Late one evening, a Toronto police officer pulled out to follow a Mercedes that he observed speeding on the Gardiner Expressway. The Mercedes then abruptly exited onto the Spadina Ave. exit ramp, an action which the officer believed risked the safety of another vehicle. When the Mercedes pulled over and the officer walked up to the vehicle, he noticed the odour of alcohol but was unable to identify the source, likely because the vehicle’ windows and sunroof were open. He suspected alcohol was present in the driver’s body, but there were three other passengers in the vehicle, and the officer felt he had did not have a legally adequate foundation for a suspicion.
The officer, who had over 23 years’ experience in Toronto traffic services, then requested that the driver exit his vehicle and sit in the back seat of his cruiser for a ‘teachable moment’; there, he interrogated and admonished the man for speeding, for about 15 minutes. The officer ultimately wrote out a ticket for ‘careless driving’ under the Provincial Offences Act, but when he opened the cruiser door to hand the driver the ticket, he noticed the smell of alcohol on the detained man. As a result, the officer made an approved roadside screening demand (ASD). When the breath test registered a ‘fail’, the officer arrested the driver for ‘over 80’, informed him of his rights and caution, and drove the defendant to the police station. Two breath samples were taken and registered a blood alcohol concentration (BAC) of 100 and 90 mgs/100 ml of blood, respectively. The defendant was then charged with operating a motor vehicle with an excessive BAC.
The arresting officer never issued the careless driving ticket.
Trial arguments and reasoning
In the trial on the ‘over 80’ charge’, R. v. Azarnush, defence counsel argued that the detention in the rear of the officer’s cruiser and the manner in which the man was confined, amounted to an arbitrary detention which is in breach of s. 9 of the Charter. In view of the Charter breach, it was argued that the BAC reading that was effectively derived from the breach, should be excluded as evidence.
The officer testified that when he asked the defendant to accompany him to the cruiser, he locked the door (which only he, the officer, could unlock) but did not place the defendant under arrest or pat him down. The officer had already decided, at that point, to lay a charge of careless driving or dangerous driving, depending on his investigation.
The officer testified that he placed the defendant in the rear of his vehicle for a number of reasons. The first was to save him from the embarrassment of being berated for poor driving in front of his friends. Another, was that it was safer in the cruiser than standing at the side of the road. A third reason was to isolate him from the other passengers in the Mercedes, and thus determine if he could detect the odour of alcohol on the man.
The officer recorded the entire 15-minute interrogation, which did not include any questions about alcohol. The video evidence revealed that defendant was polite throughout, however, the officer’s tone during the discussion was frequently sarcastic and the defendant’s responses indicated he felt shamed and intimidated.
Defence counsel put forward three complaints, which could impact the admissibility of the BAC readings. The legality of the ASD demand was challenged for failing to adhere to the ‘forthwith’ requirement in s. 254(2) of the Criminal Code. However, Justice Green rejected this argument on the grounds that the arresting officer did not form ‘reasonable grounds to suspect’ alcohol in the driver’s body until he opened the cruiser’s rear door and detected the smell of alcohol when the defendant exited from the back seat. At this point, the officer promptly informed the man of his intention to make the demand and retrieved the device in good time.
Defence counsel’s second concern was that the defendant was not taken to the station and administered breath tests ‘as soon as practical’ as required under s. 258(1). Defence counsel pointed to the fact that the officer took about 15 minutes to complete his on-scene data entry requirements before leaving for the station. Justice Green did not accept this argument, and found that this delay was reasonable in all the circumstances.
The third concern raised by the defence is the manner of the defendant’s detention in the rear of the cruiser, which is grounded in s. 9 of the Charter, “the right not to be arbitrarily detained or imprisoned”. Detention triggers additional protections pursuant to the Charter, including the right “to be informed promptly of the reasons therefor” and “to retain and instruct counsel without delay and to be informed of that right”. On the issue of the manner of the detention in the officer’s car, Justice Green agreed that the defendant’s Charter rights had been violated.
Roadside stops for investigation of provincial offences qualify as detention under the Charter. Justice Green asserted that when the officer pulled over and detained the defendant for ‘good faith enforcement’ of the Highway Traffic Act, the officer had proper grounds to believe the defendant committed the offence of careless driving and the detention was lawful. When he detected the odour of alcohol in the defendant’s vehicle, the officer was also authorized to question the driver on his consumption of alcohol and perform a roadside sobriety test, to determine if there was an objective basis to make a roadside breath demand.
As found in R. v. Orbanski (2005), police are not required to inform a detainee of their 10(b) Charter rights during preliminary roadside inquiries pertaining to drinking and driving. However, police powers during such sobriety investigations are not unlimited, and must be both necessary for the particular police duty and reasonable, with respect to “having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (Orbanski).
On the standard of “reasonable necessity”, the court referenced the Supreme Court decision, R. v. Aucoin (2012), where a driver was stopped by police for suspected traffic infractions and then placed in the rear of a cruiser while the ticket was written up, at which point police performed a pat-down search that led to the discovery of drugs. The Supreme Court questioned whether placing the driver in the cruiser fundamentally altered the nature of the ongoing detention and whether it was reasonably necessary in the circumstances. Further, the court found that placing the man in the cruiser increased the restrictions on his liberty in a significant way and detaining him in the cruiser was not ‘reasonably necessary’ and constituted an unlawful detention pursuant to s. 9 of the Charter.
Crown counsel conceded that the manner of the defendant’s detention in the cruiser, including the locked doors and the officer’s treatment of the man, breached the defendant’s s. 9 Charter rights.
The remaining key question to be decided in this case was whether admission of the BAC evidence after the Charter breach would bring the administration of justice into disrepute. To resolve this question, the court balanced three criteria: 1) the seriousness of the Charter-infringing conduct; 2) the impact of the breach on the Charter-protected interests of the accused; and 3) society’s interest in the adjudication of the case on its merits. Justice Green found that the breach was serious had a substantial impact on the defendant’s interests. Based on the officer’s testimony, without the defendant’s detention in the police cruiser, there would have been no detectable odour of alcohol that could be attributed to the defendant and thus, no legal basis for the ASD demand and the subsequent seizures, establishing the excessive BAC readings.
The third criteria, as noted in R. v. Grant, is “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”. On this question, Justice Green stated that although the allegations against the defendant are troubling, they fall on the lowest rung of the latter in terms of severity – the defendant’s BAC readings were barely over the legal limit; the officer was shocked when he registered a ‘fail’ and he did not exhibit signs of impairment’; and fortunately, no accident or injury occurred.
After balancing society’s interests against the seriousness of the violations and their impact on the defendant, Justice Green concluded that the administration of justice is better served by the exclusion of the defendant’s breath test results. Without the BAC readings, the Crown had an absence of evidence to prove the offence of ‘over80’, and accordingly, the defendant was found not guilty on this charge.