Between Her Majesty the Queen, and Brandon Oliver. [2011] O.J. No Ontario Court of Justice Brampton, Ontario. W.J. Blacklock J.

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1 Page 1 Case Name: R. v. Oliver Between Her Majesty the Queen, and Brandon Oliver [2011] O.J. No Ontario Court of Justice Brampton, Ontario W.J. Blacklock J. Oral judgment: June 20, (32 paras.) Counsel: J. Sone, Counsel for the Crown. A. Little, Counsel for Brandon Oliver. REASONS FOR JUDGMENT 1 W.J. BLACKLOCK J. (orally):-- I have before - Mr. Brandon Oliver, he is charged with the offence of operating a motor vehicle in excess of the legal blood alcohol limit. The Crown's proceeded by way of certificate in this case. The evidence now before me clearly suggests that on the evening in question Mr. Oliver was a driver. The lowest of his two readings puts his blood alcohol level at a hundred milligrams of alcohol in a hundred millilitres of blood within two hours of that driving, and absence something more, a finding of guilt would seem to follow. Ultimately, such a finding of guilt is resisted on several bases. 2 Firstly, it was argued that the charge should be stayed on the basis of a violation of Section 11(b). In addition, it was asserted that the accused's right to be free of arbitrary detention, unreasonable search, his right to be informed of the reasons for his detention, as well as his right to counsel were all violated in various manners. It was also argued that the demand in this case was not a lawful demand and that, as a result, the Crown could not have the benefit of the presumption created in the Criminal Code. It was also argued that this is so either because Rilling, [1976] 2 S.C.R. 183, is no longer good law or because the unlawful demand means a breach of Section 8 has been established and on this approach, an appropriate remedy exists under Section 24(1) of the Charter.

2 Page 2 3 The case out of which this series of legal issues arises occurred on April 14th, 2010 in this jurisdiction. At that time, the investigating officer, Constable Lee, was patrolling an area he described as industrial near the intersection of Kennedy Road and Britannia. Constable Lee testified that in this area there had been a significant number of break and enters. He also observed that to the north of this area were certain adult entertainment establishments. According to Constable Lee, he observed a vehicle driven by the accused, Mr. Oliver, proceeding slowly southbound on Kennedy. It was proceeding under the speed limit, doing approximately 40 to 60 kilometres an hour in a 70 kilometre zone. The vehicle was a luxury BMW SUV. This observation was made at approximately 3:59 a.m. 4 The officer indicated that there was absolutely no other traffic in the area. Constable Lee suggested that his attention was drawn to the vehicle as it was in an industrial area and vehicles tend to run along a little in excess of the speed limit. According to him, there was nothing else unusual about the driving. 5 Constable Lee testified that he decided to follow the vehicle and while he did so, he ran the licence plate of it. On running the plate, the officer testified he learned that the registered owner was a person named Angela Oliver, a female, who was bound by a recognizance not to operate a motor vehicle. He testified that as he followed the vehicle, information continued to pop up on his computer. What this information was, was never made a hundred percent clear in his evidence. It appears from other evidence in the case, however, that there was information on the system that the registered owner was under observation by another police agency for a property offence. 6 The officer suggested that he decided to stop the vehicle to investigate the driver in relation to a breach of the term of recognizance. I am satisfied that it is more likely than not that the officer originally stopped the vehicle to carry out a Criminal Code investigation. I am satisfied that initially he had reasonable grounds for an investigative detention in that regard. The parties seem to agree on this. On this basis, the initial stop was, in my view, valid. 7 At the time that Constable Lee stopped the vehicle, the accused could not be seen by him, or at least clearly in any event. He did not know if the driver was male or female. After he activated the lights of his fully marked cruiser and stopped the vehicle, he approached the driver's side and as he did so, he noticed that Mr. Oliver was a male and there was a female seated in the passenger seat. On arriving at the side of the vehicle, the officer did not, however, simply tell the accused that he'd stopped him believing he was a female and he was free to go. Rather, on Constable Lee's own evidence, he continued to investigate the accused at the roadside. 8 The precise sequence of events at the driver's window remains somewhat unclear on the officer's evidence. Given the content of that evidence as to the original factors motivating the stop, and given how long it was before the officer ever really clearly asserted from the box that he was at any point operating under his powers to detain a vehicle under the Highway Traffic Act, I am satisfied that it is most likely that the operating factor in motivating the officer's continued efforts to investigate the accused was not, in fact, driving or HTA related. Rather, they related to his suspicion that there was a property offence of some kind going on, either in relation to the vehicle or the surrounding properties. 9 During this time. Constable Lee nonetheless engaged the accused and asked him a number of questions. These questions included inquiries like where the accused had been, what he was doing, who he was, who the owner of the vehicle was, what was his connection with the vehicle. In my view, the officer was, at this point, in all probability in reality motivated by his concerns that the accused may have stolen the vehicle or was involved in casing the surrounding properties. It was during this period of continued detention and questioning that the officer detected the odour of alcohol from the accused's breath and the other grounds for eventually what was an ASD demand. 10 Constable Lee may have told the driver the reason that he initially stopped the vehicle, but I am satisfied that it is probable that he did not give the driver the reason, any reason, which would justify his continued detention, the original grounds having dissipated. On his own evidence, Constable Lee made no approved screening device demand at that time at the side of the car. He did, however, eventually demand the accused's documents and he returned with them to his cruiser.

3 Page 3 11 From his cruiser, the officer called for an ASD. He testified he had no idea when it would arrive, although it is fair to infer that as a result of going on air, he believed that one would eventually come. He also ran the accused on CPIC. When he did so, he discovered that the accused came back, "prohibited firearm". At this point, the officer said he decided he would not return to the accused's car to give him either his rights to counsel, nor the ASD demand, nor tell him why he was being held at the side of the road until the officer who was coming with the ASD arrived. In this regard, he was motivated by reasons of officer safety. 12 The officer bringing the ASD ultimately did arrive and was briefed by Constable Lee and an approved screening device demand was made and the test administered. The delay from the stop until the test was administered was, in fact, somewhere between 16 and 20 minutes. Subsequently, duty counsel was accessed back at the police station and that call was completed and advice received in less time than the, than the delay that occurred at the roadside. 13 I agree with Justice Duncan in Regina and Jack Siniac(ph), unreported decision in the Ontario Court of Justice released January 26, 2010, that given that the right to counsel has now been extended to those who are in a state of investigative detention, the courts may again have to examine how the concept of detention has been defined. The Supreme Court of Canada itself seems to have made it clear that it is not every interaction with the police in which a citizen is momentarily delayed by an officer that will lead to a finding of actual detention by a court. In this case, however, I do not now believe that it is open to me to find that the accused was not detained. Too much appellate water has gone under the bridge for me to conclude that a person who is directed by a peace officer in a marked cruiser to stop while driving as part of a Criminal Code investigation on the basis of articulable cause, was not being placed in a state of detention. The fact that the officer's grounds dissipates, but that the officer nonetheless continues to investigate the citizen for Criminal Code purposes does not mean that the state of detention which the accused was in has come to an end. From the perspective of a reasonable citizen he would believe, in the circumstances, that this accused found himself in that he was not free to leave. 14 While I recognize that there may be some doubt on this, as I earlier indicated when I look to the scenario as a whole, and I consider the officer's slowness to articulate the Highway Traffic Act as a basis for continued detention, I am satisfied it is more likely than not that Constable Lee was in reality continuing to question the accused, at least initially, being motivated by non-driving Criminal Code concerns. That being the case, I believe on the current state of the law, I am bound to conclude that Constable Lee was obliged to inform the accused of his right to retain and instruct counsel without delay, and he was obliged to tell the accused the reason why he was continuing to detain him, notwithstanding that the initial grounds for the stop had fallen away. In failing to do so, in my view, Constable Lee breached the accused's 10(a) and 10(b) rights and he did so before any concrete safety basis reasons arose to permit him to hold off in either regard. The grounds necessary for his approved screening device demand being obtained during this period of unconstitutional detention, I am satisfied then, to the requisite degree, that those grounds were obtained in breach of the Charter. As a result, I must consider the issues arising under Section 24(2). 15 Turning to that issue, it seems to me that on the one hand, the officer's conduct is not overly serious. The stop was originally justified, the continued detention and questioning of the accused was for a relatively short period of time. The officer, in fact, in relatively short order came into possession of information that provided another basis for Mr. Oliver's continued detention, namely the presence of alcohol on his breath while operating a motor vehicle. I accept that the officer did not intentionally refuse to comply with the Charter. The facts of this case are sufficiently unusual and the obligations of the officer sufficiently complex that one can understand why the officer may not have complied with what a court subsequently finds to be the requirements of 10(a) and 10(b). 16 On the other hand, the impact on the Charter protected interests of the accused was very real. There was no basis to continue to detain the accused originally. If he was to be detained and, and questioned for Criminal Code purposes he was on the basis of the appellant authorities binding on me entitled to his Charter rights. It is probable that it was through the action of conducting this very interview which the officer was not lawfully positioned to conduct, that the grounds for further investigation were developed. The accused's constitutionally protected interest in being left alone were in this sense significantly compromised, notwithstanding the briefness of the period of unconstitutional detention.

4 Page 4 17 In addition, the powers of the police to stop and detain motorists without any objective cause have been said to be limits on Charter protected interests. A baseless power to detain is only justified when used in pursuit of very limited purposes. It might be suggested then, that the court needs to employ a degree of vigilance in its approach under Section 24(2) to avoid the de facto creation of powers to arbitrarily detain motorists and to gather evidence in a way that the courts and legislative branches of government did not originally intend. 18 Turning to the third branch of the 24(2) inquiry, the evidence gathered is undoubtedly reliable and essential to the Crown's case. Yet there are other circumstances which suggest that societal interest in a trial on the merits here may be relatively low. The seriousness of the charge is a factor around which, in my view, there is still real ambiguity as to how it fully figures into a proper Section 24(2) analysis. It is clear that just because the charge is, in fact, serious does not mean that the administration of justice will be brought into disrepute by the exclusion of important evidence. In many circumstances, it is the very seriousness of the allegations that must drive the court towards exclusion. I also recognize that allegations of drinking and driving offences are far from trivial matters. 19 On the other hand, in this case, there is no allegation of accident or injury or indeed impairment. In addition, the lowest of the two readings in this case is just barely over the legal limit, being registered at a hundred milligrams of alcohol in a hundred millilitres of blood. Given the nature of this charge, the accused has also already been significantly consequenced administratively through the loss of licence for 90 days. 20 Looking at all the circumstances, I think this is a very close call under Section 24(2). I see the first set of factors militating towards admission, the second militating towards exclusion. The third set of factors, in my view, to some degree cuts both ways. These questions are never as simple as doing the math. They are nuanced and subtle. I have come to the conclusion, however, on balance that the exclusion of the roadside observations in the context of this case is in the interest of the long term repute of the administration of justice. 21 This conclusion is based on my assessment of the combination of the impact of the - on the accused's Charter protected interests, the need for the courts to employ a degree of vigilance in the area of baseless detentions, the fact that the ground for continued investigation was so directly tied to the violation, the nature of the charge, the facts at its basis and the fact that the accused has already been administratively consequenced in a way that, to some degree, mirrors some of the sentencing consequences that might flow out of a conviction itself. This result is thus uniquely tied to the totality of all the precise circumstances of this particular case. Had any one of those circumstances been different to any degree, the result may well have been different. 22 In light of the conclusion I've come to, it seems to me to follow, however, that the failure on the roadside should be excluded as it was obtained without admissible grounds. This, in turn, means the breath demand is clearly a breach of Section 8 and, in turn, this should result in an exclusion of the ultimate breath readings. 23 While that is enough to deal with this matter, in case it is ever reviewed by way of appeal, I will address the other issues that were raised. 24 I can indicate that I would not have stayed this case on the basis of an allegation of 11(b). I am not satisfied having heard this litigation that even apart from the 11(b) issue, it would have been completed within three quarters of a day, which the both parties estimated in this matter. That being the case, the fact that the matter was not completed on the first trial date should result in no more than an apportionment of the delay between the first and second trial date. The delay in this case would thus have been less than 11 months attributed to either the Crown or the institution of the court. While this is outside the guideline, it is not grossly outside the 11 - of the eight to nine months which appears to now govern this jurisdiction. Given the nature of the prejudice alleged, which I am now satisfied having heard the trial in this matter, did not include any impact on the accused's fair trial interests. I would not be satisfied that an actual breach of 11(b) has been made out. 25 I've also concluded that the defence submissions that Rilling is no longer the law or submissions that need to be

5 Page 5 made to a much higher court than this one, if they are to have any chance of success. For this court's purposes, it is now clearly established that Rilling continues to bind this court. 26 In addition, I'm satisfied that the officer complied with any notion that the roadside demand should be given immediately upon forming his suspicion that the accused has been driving with alcohol in his body. 27 This issue has been an issue before the courts which has been debated for an inordinate amount of time with little clear resolution. There are authorities that indicate a demand must be truly immediate. See, in that regard, Regina and Singh, [2000] O.J. No Other authorities suggest that there's no requirement for a truly immediate demand. See Regina and Spearing, [2002] O.J. No It seems to me, however, that the gulf between these two camps has been narrowed considerably. Even the authorities which deny the need for true immediacy recognized a general need for the officers to continue to conduct a roadside investigation with real dispatch. See, in that regard, Regina and Bishun, [2004] O.J. No Moreover, the Supreme Court of Canada, while recognizing a requirement which they refer to as "an immediacy requirement," also treat the term, it appears, interchangeably with terms like "forthwith" or "prompt." See Regina and Woods, [2005] S.C.J. No In addition, other authorities which champion immediacy have now recognized exceptions to true immediacy which include circumstances of exigency or investigative necessity. See Regina and Filldan, [2009] O.J. No. 3604, paragraph All this suggests to me that there's now very little difference between the two schools of thought. Applying the test as I understand it emerging from these authorities, here it seems to me that it was open to the officer to call to see if there was an ASD reasonably available to him before making an actual ASD demand. Had the answer been that one could not be there for a period into the range of 20 minutes, the officer might then have decided to give the accused his right to counsel and permit him to access counsel from the cruiser by cell phone or other appropriate means, or may have chosen to proceed by way of roadside physicals. Once the officer returned to the cruiser and called making inquiries about an ASD, I think it was also open to him in the particular circumstances of this case given the location, the time of day, the lack of any other traffic in the area, the fact that the officer was alone, the information the officer had about the vehicle and the registered owner, the manner in which the vehicle was being operated, to decide at the same time to take a very short period of extra time to simply access information already in the police possession on their system, before deciding how to go about administering the roadside demand. Having accessed that resource and found that the accused was "prohibited firearm" and realizing that the accused would have to wait for the device in any sense, I see nothing that took the officer outside the scope of the section in making his decision to hold off the actual demand until another officer was present. 31 Finally, even if I'm wrong in that, I wouldn't, on this basis, be prepared to exclude any evidence with respect to the roadside failure or associated evidence under Section 24(2). 32 Having said that, however, on the basis of the first argument, I'm satisfied that it's appropriate to exclude the certificate readings and the charge will be dismissed. qp/s/qlacx/qlvxw/qlced