Overnight detention of the driver following breath tests resulted in a Section 9 Charter breach

R. v. Ternowsky 2014 ABPC 109 – another trial judge has examined whether or not the accused’s section 9 rights were breached by his being held in custody overnight. While this case focused on more than one Charter issue, it essentially hinged on the overnight detention of the accused following breath test results of 130 mg% and 120 mg%. The accused was 79 years of age, has high blood pressure, expressed an intention to spend the night in the sleeper of his truck, he was in a town unfamiliar to him, and it was October 17th, cool but not likely life-threatening on a short term basis, or necessarily even uncomfortable, given access to a vehicle with a sleeping compartment.

Provincial Court Judge D.R. Shynkar said that the gist of this issue was essentially whether Mr. Ternowsky should have been detained, and if so, whether he ought reasonably to have been released prior to the 6 hours until the following morning, and whether his being kept in cells breached his right to be free from arbitrary detention? The arresting officer was due to get off shift a little later than 2:35 AM and a guard watched Mr. Ternowski until the next officer came on shift at about 9 AM, when Mr. Ternowski was released. 

Section 497 of the Criminal Code imposes a duty on peace officers to release an arrested person “as soon as practicable,” and detention is not to continue unless it is “necessary in the public interest.” Of course, some specific examples of the public interest are set out in s. 497(1.1) of the Code.

At para. 27, Judge Shynkar said:

There are a number of decisions in this area, and as one might expect, they are very much dependent on their individual facts. An individual who is intoxicated to the point of being unable to walk unassisted is likely a suitable candidate for being held overnight; a mildly intoxicated individual who has a responsible person ready to pick him up should very likely be immediately released. Between these extremes there are countless permutations of facts that demand careful attention in each particular situation.

At paras. 31-32:

…  Police officers must be live to the fact that an intoxicated person may be a danger to himself or others. Mr. Ternowski’s blood alcohol was over the legal limit, he did show signs of at least mild intoxication, and he was in a town the constable understood to be unfamiliar to him. It is not perfectly clear, however, that he would have been in danger because of his intoxication had he been released. There is no evidence as to what became of his truck, and whether he could reasonably walk to it, and stay in the sleeper without being “in care or control.” Unfortunately, that question was not explored, and it should have been.

The fact that an individual’s blood alcohol level exceeds the legal limit is not in itself reason for detention: citizens cannot be detained on the basis that they are at risk of driving simply because they have access to a vehicle and are “over.” The assumption could not be made in this case that because Mr. Ternowski intended to stay in the sleeper of his truck that he would necessarily drive it before his blood alcohol level dropped sufficiently. Indeed, having just been arrested and charged, one would expect him to be rather careful in that respect.

Judge Shynkar was of the view that the decision to detain Mr. Ternowski at the onset was defensible based on the circumstances existing at that time.  The officer made a judgment call at that point based on the existing considerations, and the judge did not find that it was unreasonable. He was an elderly man, at least slightly intoxicated, in an unfamiliar town in the small hours of the morning, with no one to take charge of him. His s. 9 rights were not breached at that point.

However, the length of the detention following that time became problematic, said the Judge. Given that Mr. Ternowski’s level of intoxication was not particularly high, it was clear that the circumstances justifying his continued detention would change long before the start of the next shift at 9 a.m., over six hours away. Sometime during that six hour period, very likely close to the beginning of it, and perhaps in as little as an hour, it could be expected to be abundantly clear that Mr. Ternowski’s sobriety just did not justify keeping him in a cell, notwithstanding his age, the time of day, or the unfamiliar town. At that point, his s. 9 Charter rights were breached.

At paras. 41-43:

It needs to be noted that there was in fact an opportunity for a reassessment at about 4 a.m., when the [arresting officer], then off-shift, came back to the detachment to see that Mr. Ternowsky had his medication. As noted above, there was evidence that at that time Mr. Ternowsky was wanting release, and while it appears there was discussion of his also wishing to go to his truck, there was unfortunately no exploration of the possibility of immediate release. Given my finding that his detention several hours earlier was defensible but not mandatory, he would almost certainly have been releasable at this time.

Implicit in the evidence is that he was not released because there was no one there, officially, to release him: [the officer], before going off-shift after 2:30 or so, decided that Mr. Ternowsky would be held until 9 the next morning, not because that is when he would be releasable, but because that would be when the resources available to the detachment would permit release; also implicit is that she did not reassess and release Mr. Tarnowsky at 4 a.m. because she was off-shift, and there only to ensure he had his medication.

Police officers working in such circumstances are necessarily constrained by the resources available to them; they cannot work 24 hours a day, and cannot be faulted when they simply do not have the manpower required. At the same time, the breach of an individual’s Charter rights cannot be overlooked because of a lack of police resources: if that lack is resulting in Charter breaches, it is a lack that requires attention.

As a result of the s. 9 Charter breach, Judge Shynkar excluded evidence of the service of the certificate of analyst and “notice of intention”.  Without that evidence, all that was left for the trial proper were the observations and testimony of the officer regarding Mr. Ternowsky’s ability to operate a motor vehicle and whether it was impaired by alcohol.  The Judge said while it was suspicious that Mr. Ternowsky’s ability to operate a motor vehicle was impaired by alcohol, the court was not able to conclude that to be so beyond a reasonable doubt, based on the available evidence. Both counts of 253(1)(a) and 253(1)(b) of the Criminal Code were dismissed.

As a side note, I particularly enjoyed seeing Judge Shynkar’s comment at para. 28 of this case, as it confirms what I have been saying to the cadets and in-service officers all along; not that it changes a court’s decision though:

Here, as in other areas, police officers are called upon to make prompt judgment calls in the course of their working day, knowing that a decision made with the best intentions in the short time available to make it may be scrutinized and argued about for hours or even days in a subsequent court proceeding, and that a judge has the luxury of taking weeks or even months to consider exactly what decision should have been made and in what fashion.

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Filed under Arbitrary Arrest or Detention, Impaired Driving

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