With nice summer weather, comes increased motorist activity, and extra consideration of 10(a)(b) of the Charter

R. v. Evans 2015 ONCJ 305 – although this case happened in December of 2011, the circumstances surrounding it should serve as a reminder to us at this time of the year (summer) due to the “more than normal” traffic stops likely to be occurring at this time of the year. The defendant was directed to stop his vehicle as part of a roving sobriety check-stop. Soon after approaching the defendant and beginning to interact with him at the roadside, it became rather apparent to the police officer that stopped him that the defendant’s ability to operate a motor vehicle was impaired by alcohol. The defendant was therefore arrested for that offence. Once at the police division, the defendant ultimately provided breath samples that revealed his blood alcohol concentration to be well in excess of the legal limit. The facts surrounding the case itself are all too familiar and not really the purpose of this post. What the case does illustrate is a reminder to officers of Section 10(a) and 10(b) of the Charter and motorists.

Justice J. Stribopoulos J. in Evans examined the requirement of these Charter principles at roadside. To reiterate, Section 10 of the Charter guarantees certain rights “on arrest or detention”, including: “(a) to be informed promptly of the reasons therefor” and “(b) to retain and instruct counsel without delay and to be informed of that right.” It is well established that a driver who stops his or her vehicle when signalled to do so by a police officer is “detained” (e.g. R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3 at paras. 30-31 [Orbanski & Elias]; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Clayton, [2007] 2 S.C.R. 725 at para. 66 (S.C.C.), per Binnie J., concurring). In Orbanski & Elias, the Supreme Court of Canada held that the right to counsel does not apply at the roadside when the police are conducting road-safety inquiries, for example, questioning a driver about alcohol consumption or requesting that the driver participate in sobriety tests. According to the Court, the right to counsel is implicitly overridden in such circumstances by the “operating requirements” (Orbanski & Elias, supra, at paras. 37, 39) of the “interlocking scheme of federal and provincial legislation” (same, at para. 27) governing motor vehicle travel (same, at para. 43). In other words, the right is overridden because of the impracticality of implementing it at the roadside.

Of course, the override of the right to counsel at the roadside during detentions motivated by traffic safety concerns has its limits. In upholding the override as a reasonable limit under section 1 of the Charter, the Supreme Court in Orbanski & Elias noted that any responses given by the motorist to police questions or the results of any roadside sobriety tests can only be used as an investigative tool to confirm or refute the officer’s suspicion that the driver might be impaired; it cannot be used as direct evidence to incriminate the driver (same, at para. 58). Further, as the Supreme Court explained in Orbanski & Elias, “the limitation on the right to counsel has strict temporal limits — there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel” (same, at paras. 37, 39). Therefore, if the police investigation of a suspected impaired driver culminates in an arrest, the justification for the override falls away and the person arrested must then be informed of his or her right to counsel (we also have to be aware that the override does not exist when delays are present in other circumstances, such as having to await the arrival of an ASD device, for example – see R. v. George [2004] O.J. No. 3287 at paras. 50-51 (C.A.)).

It is important to note that there is no comparable override at the roadside of the right found in section 10(a) of the Charter. This is because there is simply nothing impractical about the police telling a driver whom they stop why they have been detained. As Charron J. observed on behalf of the Court in Orbanski & Elias: “I suspect every motorist would fully expect ‘to be informed promptly of the reasons’ why he or she is being stopped” (same, at para. 31). Section 10(a) of the Charter requires police to tell those who they detain in “clear and simple language” (R. v. Mann, [2004] 3 S.C.R. 59 at para. 21) of the reason(s) why.

With respect to when a detained or arrested individual must be apprised of the information to which they are entitled under sections 10(a) and 10(b), the law is clear and well established. Section 10(a) provides that the person detained must be informed “promptly” of the reason(s) for their detention. According to many courts, for example the Court of Appeal for Ontario, “promptly” properly understood in the context of section 10(a), means “immediately” (R. v. Kelly (1985), 17 C.C.C. (3d) 419 at 424 (Ont. C.A.); R. v. Nguyen, 2008 ONCA 49 at paras. 16-22).

The guarantee would seem to serve slightly different purposes for those who have been detained rather than arrested. For many, being detained by police will occasion a fair bit of anxiety; compliance with the guarantee therefore goes some distance towards lessening the psychological impact of detention. In addition, depending on the circumstances, the person detained by the police may be in a position of legal jeopardy. In such situations, knowing why one has been detained will undoubtedly assist the affected individual to make a more informed decision in terms of how to respond. For example, a detained motorist who knows that they are suspected of impaired driving may decide to refrain from making an incriminating admission or participating in physical sobriety tests. The only permissible delay, the Supreme Court has explained, is where the police need time to obtain control over a potentially dangerous or volatile situation out of concern for police or public safety (see R. v. Strachan, [1988] 2 S.C.R. 980 at 998-999; R. v. Debot, [1989] 2 S.C.R. 1140 at 1163-64, per Wilson J; R. v. Suberu, [2009] 2 S.C.R. 460 at para. 42).

In Evans, the officer testified that before he had an opportunity to say anything to Mr. Evans after approaching his car, Mr. Evans looked up at him and said “yes”. At this point, in order to comply with section 10(a) of the Charter, Justice J. Stribopoulos J. said the officer should have told Mr. Evans: “I stopped you because I think you may have been drinking and I want to make sure you are okay to drive” or words to that effect. Instead, he proceeded to question Mr. Evans about where he was coming from. This led Mr. Evans to confirm that he was coming from “the bar,” a response that the officer testified also served to reveal that Mr. Evans’ speech was extremely slurred. It was only after receiving Mr. Evans’ incriminating response that the officer told him that he was part of a RIDE spot-check and that he was checking drivers for alcohol consumption.

The Justice said that given that the officer had seen Mr. Evans drive off in his car after leaving a bar, combined with the driving he had observed (i.e. Mr. Evans’ sudden acceleration, his failure to signal lane changes or turns, and the fact that he seemed to be speeding), that he actually suspected that Mr. Evans had been drinking and might be an impaired driver. Given all this, the Justice ruled that the officer violated Mr. Evans’ section 10(a) Charter right. In addition, once the driver was arrested, the arresting officer did not advise the driver of his 10(b) Charter rights; another officer did so, but not until roughly 14 minutes after the arrest. The arresting officer testified that Mr. Evans was cooperative throughout his dealings with him. As a result, there was simply nothing about the circumstances to justify the fourteen-minute delay in apprising Mr. Evans of his right to counsel said the Justice. The delay therefore occasioned a violation of Mr. Evans’ section 10(b) Charter rights as well.

Accordingly, pursuant to section 24(2) of the Charter, all of the evidence proffered by the Crown relating to the observations made by the three officers after the violation of Mr. Evans’ section 10(a) right was ordered excluded (253(1)(b) charge). With respect to the charge of impaired driving (253(1)(a) charge), the evidence that remained was the officer’s observations of Mr. Evans leaving a bar late on a Friday night, accelerating quickly once he entered onto the roadway, failing to signal a lane change and some turns, speeding, and having red flush cheeks and watery eyes. Although this collection of evidence would be sufficient to justify the making of an approved screening device demand, according to the Justice, it fell far short of proving a charge of impaired driving beyond a reasonable doubt. Accordingly, that charge was also dismissed.

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