Indexed as: R. v. Coulter. Between Her Majesty the Queen, and Marc Coulter. [2000] O.J. No Ontario Court of Justice Brampton, Ontario

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1 Page 1 Indexed as: R. v. Coulter Between Her Majesty the Queen, and Marc Coulter [2000] O.J. No Ontario Court of Justice Brampton, Ontario Duncan J. July 25, (36 paras.) Criminal law -- Offences against person and reputation -- Motor vehicles -- Impaired driving -- Breathalyzer, demand for breath or blood sample -- Civil rights -- Detention and imprisonment -- Detention -- What constitutes arbitrary detention -- Security of the person -- Unlawful search -- Strip search. Application by Coulter to stay charges of impaired driving and driving while his blood alcohol level exceeded the legal limit on the ground that his rights under the Canadian Charter of Rights and Freedoms were violated. There was a delay by police in taking Coulter to a neighbouring police station from the one where he was first detained in order to administer the breathalyzer tests. Police decided to keep him at the station until he was sober, and to strip search him before putting him in the cells. Coulter argued that a second officer, to whom he was given to be taken to the station, did not form the requisite opinion that his ability to drive was impaired by alcohol and the demand was therefore unlawful. However, he conceded that reasonable grounds had existed for the first officer to form the belief that he was impaired. HELD: Application dismissed. In order to justify taking a breath sample, all that was required was that the first officer who detained Coulter formed an opinion that his ability to drive was impaired. Coulter's detention in the cells until he was sober was lawful given his high breathalyzer readings. The strip search violated Coulter's rights, and was not a reasonable requirement, as Coulter was not to be released into the general prison population, in which case it would have been necessary for safety and to ensure against contraband. However, given that the strip search was not relevant to the charges or to Coulter's guilt or innocence, it was not appropriate to stay the charges as a result. Fur-

2 Page 2 thermore, no court had explicitly disapproved of the practice, which the police believed they were justified in carrying out. This was not the clearest of cases which would justify a stay. The issue of whether the breathalyzer was administered as soon as reasonably practicable was not a constitutional issue, but was a substantive argument under the Criminal Code. Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, ss. 7, 8, 24(1), 24(2). Criminal Code, ss. 253(3), 258(1)(c), 498, 498(1). Counsel: Peter Lindsay, for the accused. Kim Rogers, for the Crown. 1 DUNCAN J.:-- Marc Coulter is charged with impaired driving and exceed 80. He has brought a Charter application seeking a stay of proceedings or alternatively exclusion of breath sample results. He alleges that he was the victim of unlawful and arbitrary detention and unreasonable search. 2 Mr. Coulter was driving a pickup truck that struck a parked vehicle on a residential street around 7 p.m. Police arrived at 7:09 and spoke to witnesses at the scene and the defendant Coulter. The first officer, a senior ranking officer, after forming the requisite opinion, arrested the defendant and read him a breath demand. The defendant was then turned over to a second officer, who received the first officers information and opinion, formed his own opinion and read another demand. The defendant was compliant and was taken for tests. Testing required that he be taken to a distant Peel police Division where a machine and technician were available. He ultimately gave samples at 8:32 and 9:02 that betrayed a blood alcohol concentration of 215 and 213 mgs % respectively. Following the testing procedure, the defendant was taken back to the Division in which the accident occurred. The officer in charge determined that the defendant would be released when sober. He was strip searched at around 10:30 p.m. and held in cells until just before 5 a.m. when it was believed his b.a.c. had reached acceptable level. The strip search was conducted as part of the usual practice in this jurisdiction where an arrestee is being lodged in cells. 3 The defendant alleges 5 Charter violations: 1. The second officer did not form the requisite pinion thereby rendering his demand and subsequent testing an unreasonable search. 2. The tests were not taken as soon as practical, and therefore the testing (search) was not authorized by statute and therefore unreasonable. 3. The taking of the defendant from 22 Division where tested to 11 Division where incarcerated, without the officer in charge of 22 Division considering the question of release, amounted to an arbitrary detention. 4. The holding of the defendant until he sobered up was an arbitrary detention.

3 Page 3 5. The strip search of the defendant was unreasonable. I did not call on the Crown for a response to the first two points. 1. The officer did not form the required opinion: 4 This argument is based solely on the fact that the escorting officer, when giving the background of the case to the qualified technician said that, as a result of his observations and what he had learned, he believed that the accused "may be impaired". The technician then asked, to the effect, "you mean you were of the opinion based on reasonable grounds, that the accused's ability to drive a motor vehicle was impaired by alcohol?" to which the arresting officer readily agreed. At trial, the officer maintained that he had such an opinion from the outset and that his choice of words with the qualified technician was poor. 5 It is conceded by the applicant that reasonable grounds existed that objectively would have supported the opinion required in section 253(3). In my view, the existence of such grounds is a significant fact in determining what belief was held by the officer. It would be odd if he held a belief that was different from, and short of, that which was supported by the objective evidence. This is sort of the reverse of the situation dealt with in R. v. Feeney, 115 C.C.C. (3d) 129 at pp but in my view the same principle applies. 6 I am alive to the argument that the officer's stated corrected opinion means nothing given the assistance from the qualified technician. However, in these circumstances where grounds in fact existed, I accept the officer's evidence that he had the required belief at the outset and merely expressed it poorly to the technician. 7 Further, and as an aside, it is my view that the proper opinion and demand of the first officer was all that was required to satisfy the requirement that the samples be taken pursuant to a demand made under section 254(3). In my view the opinion and demand of the second officer were unnecessary and redundant. 2. The breath samples were not taken as soon as practicable: 8 In my view this argument is a substantive argument under the Criminal Code and should not be dealt with as a Charter argument. It is a recognized principle of law that if a case can be dealt with on a non constitutional basis, then t should be. Moreover, I see considerable duplication of effort and no advantage to the applicant to deal with the argument at this stage rather than at the end of trial when the onus would be on the Crown to prove this matter beyond a reasonable doubt. 9 The applicant argues, however that it is of the same ilk as the first argument going to the lawfulness of the sample taking and therefore raises constitutional search issues. With respect, I believe this is incorrect. The "soon as practicable" requirement is contained in section 258(1)(c) of the Code which creates the presumption of blood alcohol concentration. The requirement is not a legal prerequisite to the taking of samples (the search) nor the admissibility of the results, which are governed by subparagraph (g). Accordingly, in my view, this argument is not a constitutional argument and should not be dealt with on this application. 3. Was the Defendant arbitrarily detained? 10 This argument focuses on section 498 which provides, to paraphrase in part:

4 Page 4 498(1) Where a person who has been arrested without warrant... is detained in custody under section 503(1) for [this offence] and has not been taken before a justice or released from custody, the officer in charge or another peace officer shall as soon as practicable [release him] unless he believes that it is necessary in the public interest having regard to all of the circumstances [to detain him]. 11 There is a substantial body of authority that has held that the police are entitled to hold a post breath test subject until he sobers up, and that it in so doing there is no arbitrary detention: R. v. Sapusak [1998] O.J. No. 4148; aff'd [1998] O.J. No (C.A.); R. v. Cross (1985) 38 M.V.R. 137 (Ont PC Langdon J.); R. v. McIntosh (1984) 29 M.V.R. 50 (BCCA); R. v. Williamson (1996) 25 C.C.C. (3d) 139 (Alta Q.B.); R. v. Pashovitz [1987] S.J. No. 833 (CA). Many of the cases approach this issue on the assumption that the decision to hold until sober constitutes a decision for detention within the meaning of the latter part of the subsection. Another approach is that the decision to hold until sober is simply a deferral of release until release is practicable within the meaning of the earlier part of the subsection: see for example Campbell infra at para 29. This latter approach appears to me to coincide more accurately with what occurred here. The officer in charge testified that he had three options: 1. to release, 2. to hold until sober and then release or 3. to detain. On being apprised of the circumstances of the offence and the offender he quickly chose option #2. In my opinion, what occurred is properly characterized as a decision to release as soon as it was practicable to do so, rather than a decision to detain. Having said that, the precise characterization of the process may not matter for the purpose of determining the lawfulness of the detention, but does have relevance to the search issue dealt with below. In any event, the above mentioned authorities have established that such detention is lawful and not arbitrary. 12 As I understand it, counsel for the defendant does not really take issue with that proposition but argues that there is an exception or qualification to it, that is, that the subject should not be detained if there is a responsible adult person available to take custody of the detainee. He relies on R. v. Handley (April , Ont Gen Div Langdon J.) and my own decision in R. v. Metlin (March ). 13 In Handley the trial Judge stayed impaired and exceed 80 charges, finding a breach of section 7 of the Charter and an abuse of process where the accused was held for 14 hours after breath tests where he "could have been released and there was no reason for him not to be released to the custody of his common-law wife". The judgment does not disclose the breathalyzer reading. An appeal by the Crown was dismissed, Langdon J. holding:

5 Page 5 "As a general policy, I cannot find a Charter violation in a decision to detain an arrested impaired driver until he is sober enough to be released. However, where a responsible adult comes forward to accept responsibility for the prisoner and there is no reason to suspect that he will drive again or for instance, is in need of medical attention, the general policy must yield to right of the subject to be released." 14 The Crown argues that Handley has been eclipse, by the subsequent judgment of Justice Langdon in R. v. Campbell [1995] O.J. No In that case - factually somewhat similar to the case at bar - the detainee apparently had his wife available to pick him up, and though he asked how long he would be held (receiving the answer "We'll see") and asked to call his wife, he did not specifically ask to call his wife for the purpose of facilitating his release". The staff sergeant did not speak to the detainee and never attempted to find out whether the he could be released t, someone else's care. Justice Langdon agreed with the decision of the trial judge that ie detention was not arbitrary. While Justice Langdon did not refer to Handley, the trial judge in Campbell, [1994] O.J. No. 4370, did, and distinguished Handley on the basis that Campbell had not shown that his wife was available to pick him up or that he specifically raised the issue of release to her care with the police. In the present case, the defendant did raise the issue of his fiance picking him up, so the case is in that respect similar to Handley and not possessed of the crucial distinction made in Campbell. 15 However, in my view Handley and Metlin go no further than to hold that alternatives to detention must be considered. They do not stand for the proposition that where a responsible person is available, immediate release must always be favoured. In this case, the suggestion for such immediate release to anyone was rejected by the officer in charge based on the defendant's high breath readings. I can not say that he was wrong in coming to that conclusion nor that he was wrong in giving almost conclusive weight to the high readings. Alcohol is notorious for adversely affecting judgment and bringing out irrational and irresponsible behaviour in individuals. The officer in charge could have no assurance that the defendant would submit to the control of someone else (who incidentally, would have no legal authority over him) or that he would not become a danger to himself or others. The officer was entitled to take into account this potential and his own and the force's liability. I conclude that there was no arbitrary detention in the decision to hold the defendant until he was sober. I am fortified in this conclusion by the judgment of the British Columbia Court of Appeal in R. v. McIntosh (1984) 29 M.V.R. 50 which seems factually indistinguishable. 16 Mr Lindsay for the defendant also argued that the transport of the defendant from 22 Division (where the breath tests were taken) to 11 Division (wherein the alleged offence occurred, the arresting officer was stationed and the defendant was ultimately held) and the detention such transport required, in itself amounted to a Charter breach. It was argued that release under section 498 should have been considered by the officer in charge of the 22 Division. I can not accept the argument. I do not think the Code requires what the defendant urges and indeed the definition of officer in charge in section 493 suggests otherwise. Further it seems to me that this type of organization and processing of cases and suspects by Division is probably necessary in a large Metropolitan force. Given this necessity and the lack of any clear requirement in the Code to do otherwise, I would conclude that nothing unlawful occurred here. 17 In any event, this argument is subsumed and determined by the conclusion reached above that the overall detention until sober was lawful. If I am correct about that, then it seems to me that, logically, the part must be as lawful as the whole.

6 Page 6 4. Was the strip search an unreasonable search? 18 This was a warrantless search. It was prima facie unreasonable. The onus is on the Crown to show that it was reasonable. A search will be reasonable if it is authorized by law, if the law is reasonable and the search is carried out in a reasonable manner: Collins. A: Authorized by law 19 The strip search of the defendant and, generally, of those lodged in police cells, is not authorized by any legislative provision or regulation hat has been brought to my attention. The Crown argues that the search was authorized by the common law power of search incident to arrest. 20 In R. v. Morrison (1987) 58 C.R. (3d) 63, the Ontario Court of Appeal summarized the law as follows: As incident to a lawful arrest, a peace officer has the right to search the person arrested and take from his person any property which he reasonably believes is connected with the offence charged, or may be used as evidence against the person arrested, or any weapon or instrument found upon the person arrested, but he need not have reasonable grounds to believe that either such weapons or evidence will be found. It is the fact that the search is made as incident to a lawful arrest which gives the peace officer the authority to search the person arrested. 21 The Court in Morrison applied this rule to a strip search of a woman arrested for theft. The judgment has been the subject of criticism for apparently approving of any kind of search irrespective of its justification or intrusiveness, as long as it was incident to arrest: see Stuart's annotation to the case in C.R. and Cohen, Search incident to arrest, 63 C.R. (3d) 182. However, Morrison was subsequently cited with approval by the Supreme Court of Canada in Cloutier v. Langois [1990] 1 S.C.R Further, the Supreme Court of Canada in R. v. Beare, [1988] 2 S.C.R. 387, in dealing with the lawfulness of fingerprinting arrestees said: It should be observed that the common law permitted a number of other, in my view more serious [than fingerprinting], intrusions on the dignity of an individual or persons in custody in the interest of law enforcement. As an incident to a lawful arrest, a peace officer has a right to search the person arrested and to take any property the officer reasonably believes is connected with the offence charged, or any weapon found upon such person: Morrison. This authority is based on the need to disarm an accused and to discover evidence. In the course of custodial arrest an accused may be stripped.

7 Page 7 23 Following these cases, there would seem to be no question that the police could strip search anyone who was lawfully arrested. Indeed the American authorities relied upon in Morrison countenanced strip searches on arrest for failing to produce a driver's licence! See Cohen, supra pp However, the law in Canada soon took on some refinements. 24 In R. v. Flintoff (1998) 126 C.C.C. (3d) 321, the Court of Appeal dealt with the issue of the strip searching of Flintoff following his arrest for impaired driving and prior to his giving breath samples. The Court adopted the lower court's summary of the law, which is set out here for convenience: The law governing strip-searches as an incident to arrest Para. 146 There are three sets of rules which deal with police searches: common law, statute law and the Charter. The police are required to obey all three sets of rules. The police in this case mistakenly believed that if the common law gave them the authority to search then there was no breach of the Charter. Even though there is common law or statute law which gives the police the authority, to search a person without a warrant, a search will be a breach of s. 8 of the Charter if is unreasonable. The search will be unreasonable if the court finds that it is not authorized by common law or statute law, or finds that the law giving the police the authority to search is an unreasonable law, or finds that the police conducted the search in an unreasonable manner: Coffins at p. 14. Para. 47 The police in this case considered the strip-search to be authorized as incident to arrest. The trial judge found that it was not a search incident to the arrest but was cried out because of police policy. He also found that the staffsergeant had misinterpreted the Chief's policy because the policy, only required strip-searches where a person was to be placed in the cells. Para. 48 Although this is not a case of a strip-search incident to arrest I want to correct the mistaken beliefs of the police about their authority to search incident to arrest. Para. 49 One of the elementary rules overlooked by, the police in this case is that a lawful arrest does not justify, all manner of searches of the person. The manner of search must be reasonable in the circumstances: Hutchison, Bury, Search and Seizure Law in Canada, Thomson Canada Limited at p Para. 50 At common law the police have the right to conduct a search of the person as an incident to the arrest even though they have no reasonable and probable grounds for a search: Cloutier v. Langois (1990), 53 C.C.C (3d) 257 (S.C.C.) at p However, that does not mean the search can be conducted in any manner no matter how intrusive. Para. 51 The courts have found that a pat-down or frisk search is the least intrusive means of conducting a search incident to arrest and therefore is permissible as an incident to all arrests: Cloutier at p I note that the Chiefs policy in this

8 Page 8 case required the removal of clothing during a search incident to all arrests; that is unreasonable. When the Supreme Court of Canada approved of frisk searches in Cloutier it specifically said that it was approving of a search where pockets a examined but no clothing is removed: Cloutier at p Para. 52 While the frisk search is the least intrusive search, near the other end of the spectrum of intrusion is the search of the rectum and the courts have ruled that before conducting that type of search the police must have reasonable and probable grounds: R. v. Greffe at p Para. 53 It seems clear that if the police wish to do more than conduct a frisk without removing clothing, then they must justify, the manner of search by the circumstances of the case: Cloutier at p The degree of intrusion must be necessary and reasonable: Cloutier, p Collins at p. 14. The "greater the degree of intrusion, the greater must be the justification": R. v. Greffe (1990), 55 C.C.C. (3d) 161 (S.C.C.) at p Para. 54 A strip-search is one manner of search and in order to determine if it is reasonable one must look at all the circumstances. It is a question of balancing police powers and individual rights: Cloutier at p The court must determine:... whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. Cloutier at p The Court of Appeal in Flintoff concluded: I agree with the Summary Conviction Appeal Judge's comments on the law governing strip searches as incidental to arrest. Strip searching is one of the most intrusive manners of searching and is also one of the most extreme exercises of police power. Though the common law allows the police to search as incident to arrest, the degree of intrusion must be reasonable and in pursuit of a valid objective such as safety. (bolding added). As I understand it, the Court of Appeal in Flintoff made clear that the power to search incident to arrest is circumscribed by the limitations that such a search must be justified and no more intrusive than is necessary. This clarification brings the law of search incident to arrest in line with the general, if somewhat murky, rule respecting police powers at common law, the so-called "ancillary powers" or Waterfield doctrine: see R. v. Godoy (1998) 21 C.R. (5th) 205 (SCC); Brown v. Durham Regional Police (1998) 21 C.R. (5th) 1 (Ont CA): If police conduct constitutes a prima facie interference with a person's liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any duty imposed by statute or recognized at

9 Page 9 common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. This melding of the two concepts may be significant because there comes a point where the arrest and the objectives justifying search at the point of arrest become rather distant. It may be that it is more appropriate to speak of what is occurring, not as a search incident to arrest, but rather as the exercise of ancillary police powers incident to their lawful authority and duty to detain, at least temporarily, in the public interest. 26 The question in this case then is whether, in the context of lodging a detainee in cells, a strip search constitutes a reasonable degree of intrusion and whether it is justified by a valid objective such as safety. I have no hesitation in concluding that strip searching anyone who is entering the prison population is necessary, justified and reasonable. Quite apart from concern about weapons, in my opinion such searches are supportable in order to prevent the arrestee from bringing contraband i.e. drugs into the jail. Indeed if this measure was not taken, people would be getting themselves arrested on purpose in order to smuggle drugs into friends or others in the jails and detention centres. 27 The concern that I have, and the only remaining issues, is whether the same can be said with respect to arrestees, like the present defendant, who are to be released when sober and not introduced into the jail population. On the one side of the balance, is the recognition that a strip search is a highly intrusive and embarrassing procedure, an "extreme exercise of police power" (Flintoff) and it is being performed in these cases on persons who are presumed to be innocent and have been determined to be - but for blood alcohol content - no danger to the community and releasable. Accordingly, a high degree of justification and necessity should be shown to tip the balance in favour of permitting such intrusion. 28 The justifications relied upon are these: * Officer safety: Here the defendant is being strip searched at a point in time when he is parting company with the police officers after being wit them for a couple of hours. During that time he could easily have pulled out a weapon and done damage if so armed and inclined. But the police were apparently satisfied that a thorough pat down search was sufficient to ensure their safety. Flintoff supports the approach in holding that, in the circumstances dealt with there, a further more intrusive rip search was "unnecessary" and even "outrageous": Flintoff. (para 30)... It was also totally unnecessary. The investigating officer had already performed a search incident to arrest when he "patted the appellant down" on the highway. It seems to me that the need to strip search out of concern for officer safety must necessarily be less in this case than in Flintoff. * Safety of the detainee and other detainees: Again, no doubt the police have a duty to take reasonable steps to ensure that a detainee does not harm himself or others that he may contact while in cells. It seems to me however, that a thorough pat down frisk search and a turning out of pockets would be sufficient to discover any significant weapon, as it is deemed suf-

10 Page 10 ficient up to the point of incarceration. I recognize, however, that there is always the possibility, both in the Flintoff situation and this situation, of successful concealment of a weapon that will not be caught in a frisk search. But it is the same possibility in both situations or, if anything, a lesser possibility in the present case since the subject would have to pass two frisk searches - one on arrest and one on being lodged. It is worth mentioning that the cell area is subject to ongoing video monitoring, a significant safeguard against violence in the cells. * Contraband: Given that the detainee is going to be released, there would seem to be little concern that he will introduce contraband, particularly drugs, into the inmate population, because he won't have the opportunity to do so. However, in theory, a detainee who is going to be released could hand off drugs to a cell mate who has already been strip searched and is going to be held for show cause. But, the evidence of the arresting officer and the booking officer in this case is that impaired releasees (to perhaps coin a word) are in fact kept separate and apart from other prisoners in the bull pen area while others are lodged in separate cell. The issue is whether the rather remote possibility of the above mentioned harms outweighs and therefore justifies the very significant intrusion inherent in strip searching detainees who are going to be released. I am driven to the conclusion that it does not. I hesitate to come to that conclusion for a couple of reasons. First, to so hold is an extension of Flintoff into an area that the Court of Appeal specifically declined to go. Secondly, I am aware of and greatly respect the experience and opinion of officers who strongly support the necessity of such strip searches. However, I am not sure that the police or the Court of Appeal addressed the distinction that I have drawn here between detainees and releasees. Indeed the Court of Appeal specifically spoke of the problems inherent in "introducing an accused person into the prison population:" (Para 30). Despite these concerns, I come to the conclusion that the search was not a justifiable exercise of power. The need for such highly intrusive searches in this situation has not been demonstrated. The practice of separating these offenders from other arrestees is already in place and that practice, together with a thorough frisk search is sufficient to reduce any real concern and render such highly intrusive searches unnecessary. 29 Accordingly, it is my conclusion that the strip searching of the defendant in the circumstances here was not authorized by law. B. Reasonableness of the manner of search: 30 While the above is sufficient to render the search a violation of section 8, the reasonableness of the manner of search may still have some bearing on what is a just and appropriate remedy. 31 In this case the defendant was searched by one or two male officers in a private room. He was asked to remove his clothing and pull down his underwear and turn around 180 degrees and then pull his underwear and pants back up. He was not touched. 32 As strip searches go, I find that there was nothing unreasonable about the manner in which the search was conducted. The remedy:

11 Page Having found a breach of section 8 of the Charter, the defendant is entitled to apply to the Court for a just and appropriate remedy under section 24(1) and exclusion of evidence under section 24(2). He seeks a stay of proceedings or exclusion of breath test results. 34 In my view neither a stay nor exclusion of evidence would be just and appropriate. I have addressed this point in the similar case of Metlin supra. While the violation there was different, my thoughts on this topic are still the same. A Court should attempt to stay on the path of relevance. What occurred here is irrelevant to the trial of the guilt or innocence of the defendant and ought not to serve effectively as a "defence" to those charges. Unlike Flintoff, the violation here was not proximate or part of the process of gathering evidence. It occurred about an hour and a half after the taking of the last sample. Further, a stay of proceedings would not be appropriate. While the search was distasteful and no doubt embarrassing, it was not done for abusive or improper reasons and was carried out in as benign a manner as could be imagined. As far as I am aware, no court in this jurisdiction has disapproved of the practice that I have now found to be unreasonable in this case, so it is not as if the police were acting in defiance of judicial decision. It is not the clearest of cases that would justify a stay. 35 In my opinion the treatment of the defendant lends itself most appropriately to be remedied through amelioration of punishment if the defendant is convicted. Conclusion: 36 The trial will proceed. No evidence will be excluded. DUNCAN J. qp/s/qlala/qldah/qlcvs