Arbitrary Detention and Pre-Arrest Use of Handcuffs

In the past 5 years, there have been a number of informative and unequivocal decisions that have specifically addressed the issue of handcuffing detainees during the course of a roadside investigation for the purpose of administering roadside screening tests. To cite a few of the more recent decisions, I have read: R. v. Orde, [2017] O.J. No. 6317 (Ont.C.J.), R. v. Romaniuk, [2017] O.J. No. 1735 (Ont.C.J.) and R. v. Mahipaul, [2018] O.J. No. 2688 (Ont.C.J.). I have also written posts on the issue in other contexts from other provinces prior to this one.

These cases have provided us with significant guidance and have repeatedly emphasized the unique consideration with this type of investigation that these motorists are being detained by police even though they are not suspected of committing a crime. Rather, the police need only suspect the person of having alcohol in their system while operating a motor vehicle which, in itself, is not a crime unless a person is impaired or has more than the legal limit in their system. As a result, courts are increasingly becoming very sensitive to the manner in which police interact with detainees during roadside breath testing. Most decisions have narrowly constrained the authority of the police to use handcuffs before a person has been arrested for drinking and driving.

For example, in R. v. Virk, [2018] O.J. No. 5651, at paras. 53 to 57 (Ont.C.J.):

Although a motorist subject to an approved screening device breath demand validly made (i.e. a demand prefaced on the required grounds) is subject to lawful detention, such a motorist is not under arrest. Therefore, unless a motorist’s conduct gives rise to objectively grounded safety concerns, for example, where the person’s behaviour causes a police officer to reasonably believe they pose a threat to the police, the public, or themselves, it is not reasonably necessary to use handcuffs. Without reasonable justification, restraining a motorist in handcuffs during roadside breath testing is unlawful.
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Even though a motorist subject to a valid approved screening device breath demand is lawfully detained, the use of handcuffs escalates the incursion on that person’s liberty. Handcuffs represent a far more coercive form of state compulsion. If handcuffs are applied, they transform a detention that its inception takes the form of psychological restraint (with legal compulsion) into an encounter marked by physical restraint. If the police unjustifiably handcuff a motorist subject to an approved screening device demand, the result is an unlawful interference with that person’s liberty. In such circumstances, a detention that begins lawfully becomes unlawful.

The Supreme Court of Canada has made clear that a detention not authorized by law is arbitrary and violates section 9 of the Charter. Given this, courts in other cases have found that the unjustified handcuffing by police during efforts to obtain an approved screening device breath sample violates a motorist’s section 9 Charter not to be arbitrarily detained. If police also secure a breath sample while a motorist is unjustifiably handcuffed, these same cases also hold that the manner of the resulting seizure (or search), due to the unlawful use of handcuffs, is unreasonable and violates section 8 of the Charter.

Given my finding regarding the use of handcuffs, in light of the governing legal principles, I conclude that Mr. Virk’s right not to be arbitrarily detained, as guaranteed by section 9 of the Charter, was violated.

The latest decision out of Ontario, R. v. Horvath, [2020] O.J. No. 4297, again addressed this issue. In Horvath, he was operating a Mazda mini-van, travelling eastbound and attempted to change lanes, from the passing lane to the curb lane, and in doing so sideswiped another car being driven by Ms. Vieira. Mr. Horvath passed Ms. Vieira’s automobile, then turned. Ms. Vieira followed Mr. Horvath for some distance before coming to a stop behind him at a dead end, where Mr. Horvath twice reversed his vehicle into the front bumper of Ms. Viera’s automobile. Mr. Horvath exited his vehicle and was in roadway with Ms. Viera and her husband, when two officers arrived on scene some 30-minutes later.

Ms. Vieira explained the situation to one officer, while the other officer engaged Mr. Horvath, taking physical control over him and directing him to place his hands on the hood of the scout car. Communication proved difficult as Mr. Horvath is a native of Hungary with little facility with the English language. Some two minutes after arriving at the scene, the officer informed Mr. Horvath that he was under “investigative detention” until police could find out what was going on. Four minutes later, Mr. Horvath was placed on the telephone with a Hungarian speaking officer and, in response to questions, admitted that he had been driving and had consumed alcohol. That officer did not inform Mr. Horvath that he was subject to investigative detention or advise him of his rights to counsel. An officer on scene contacted dispatch and requested that a screening device be delivered to the location.

An officer cuffed Mr. Horvath’s hands behind his back and placed him in the rear of the scout car, telling him it “makes it easier like this.” In examination in chief, the officer was confident in his legal authority to handcuff someone who is subject to investigative detention. He explained that a detainee can be handcuffed where “it it is better to control the situation, or not, depending on how I feel.” In response to questions, the officer indicated that this power is recognized by police rules and procedures and was something that he received instruction on while attending police college.

Leaving aside the constitutionality of 10(a) and (b) of the Charter in this case as it is not the focus of my post, although the judge appreciated that police were faced with a confusing situation, the court found there was no basis to detain Mr. Horvath almost immediately upon arriving on scene. Police had limited information as to the reason for the call. It is reasonable to conclude that at the time of Mr. Horvath’s initial detention, officers were uncertain if a crime had been committed or if Mr. Horvath was involved. Moreover, Mr. Horvath never presented as a safety or flight risk. The judge found that Mr. Horvath was initially detained for convenience, as the officer was uncomfortable in dealing with someone with whom he could not communicate.

As for the use of handcuffs, the scout car recording demonstrated that at the time the handcuffs were applied, police were investigating Mr. Horvath for impaired driving and had requested that a screening device be brought to the scene. Again, it was apparent to the judge that the use of handcuffs and confinement of Mr. Horvath in the rear of the scout car was for reasons of convenience. As stated by one of the officer’s as he handcuffed Mr. Horvath, “Makes it easier like this sir.” The judge asked rhetorically — easier for whom?

The judge ruled that the use of handcuffs in these circumstances, for purposes of convenience, was clearly unnecessary and therefore unconstitutional.

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