Monthly Archives: February 2022

Acquittal in drinking and driving case as ASD demand not made immediately, right to counsel violated and accused subjected to ‘overholding’ after breath tests

The issues discussed in R. v. Kaur 2021 ONCJ 683 are not new by any stretch, but worthy of a review given these types of things are still occurring. The facts of the case are not complex, and I have summarized things from the case:

  • At approximately 3:03 AM, police received a call regarding a possible impaired driver that had jumped a curb
  • The officer located and stopped the vehicle at approximately 3:04 AM
  • He formed a reasonable suspicion at 3:06 or 3:07 AM
  • He called for an ASD at 3:13 AM and another officer was dispatched to bring an ASD to the scene
  • The officer did not read the female driver her rights to counsel during the wait
  • The ASD arrived at 3:17 AM
  • The officer read the ASD demand at 3:26 AM (some 19-20 minutes after he formed his reasonable suspicion)
  • There were no officer safety concerns articulated aside from moving to the side of the road to continue the investigation that may have delayed the demand
  • At 3:29-30 AM, driver registered a “fail”, was arrested, and RTC given
  • At 3:34 AM, the formal breath demand was read
  • Left the scene at 3:41 AM and arrived back at the station at 3:46 AM
  • After speaking with counsel, etc., at 4:43 AM provided her first breath sample which registered 176 mg. of alcohol in 100 ml. of blood. Her second sample was taken at 5:07 AM and registered 174 mg. of alcohol in 100 ml of blood
  • She was held in custody and release at approximately 10:30 AM

Section 320.27 of the Code requires that a person comply with a screening demand “immediately” (the prior provision required compliance “forthwith”). The judge found that the use of “immediately” instead of “forthwith” in the context of s. 320.27 is simply a modernization of the language without any change in meaning, as other courts have found. The section does not explicitly require that the police officer’s demand be immediate, rather, it only specifically requires that the motorist comply immediately. However, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.

The immediacy requirement in s. 320.27 necessitates the courts to consider five things:

  1. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
  2. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
  3. Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2) (now 320.27(1) CC).
  4. Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
  5. Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample. If so, the “forthwith” criterion is not met.

Applying the law to the facts of this case, the judge found there can be no doubt that the ASD demand was not made forthwith; there were no unusual circumstances which would justify the delay. The demand having not been made immediately, the police were operating outside the parameters of s. 320.27 and there was no suspension of her Charter rights. She was clearly detained from the time that she was asked to exit her vehicle, and by detaining her by the side of the road for 11-13 minutes without making an ASD demand and without telling her why she was being detained and without giving her rights to counsel, there was a violation of ss. 9, 10(a) and 10(b) of the Charter.

With regards to the over-holding, the releasing officer canvassed her health and well-being in the cells by asking her a series of health-related questions such as whether she had injuries, was on medication, or enrolled in any addiction programs, but failed to ask if she had access to another vehicle (if released), or whether anyone could attend and care for her if released (of note, a male friend had attended the station on multiple occasions that morning to pick her up, but no one advised the releasing officer of this). She was finally released from custody at 10:32 AM. During the approximately 5.5 hours that she was in the detention cell, she made repeated efforts to gain the attention of various police officers. She indicated that these efforts were geared at securing her release. She was desperate to inform her workplace that she would not be able to make it in that day. Despite her persistence of managing to engage different officers on at least 12 occasions, she was not released. The releasing officer testified that it was his “standard practice” of holding a detainee until their BAC was below 100 mgs. and that it was his “standard practice” of not releasing anyone over 100 mg unless someone was going to pick up that person.

In the judge’s view, the releasing officer never canvassed with any police officer or the accused to determine if there was someone who could pick her up before 8:00 AM, so the driving force behind her continued detention for approximately 3 hours was her BAC. From 8:00 AM until approximately 10:30 AM, there was no reason for her continued detention except the officer’s rudimentary calculation of her BAC, which would have been between 80-100 mg of alcohol (assuming the depletion rate of 15 mg per hour).

The court ruled that the simple reality was the police were required to turn their minds to all the circumstances that were present, and in appropriate cases, high blood-alcohol readings may be sufficient. However, the important thing was that there must be a thoughtful inquiry made by the police officer into the existing circumstances so that a careful assessment and consideration was made before further detention is decided to be necessary. There was nothing in the evidence before this court that raised the possibility of her driving with an elevated BAC beyond the same level of risk that any intoxicated individual detained or arrested for a drinking and driving offence poses. In the absence of some evidentiary foundation for the existence of such a risk, a police officer cannot simply choose to detain an individual because they “might” choose to drive again. As high as the readings were, they did not amount to a justification for her further detention based on a risk that she might choose to drive another vehicle. There was no exigent, legitimate, or justifiable reason for her to have been detained as long as she was. Therefore, the court found that her s. 9 Charter right not to be arbitrarily detained was breached, and in order to best serve the long-term repute of the administration of justice, the breath test results were excluded.

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Warrantless video surveillance of the accused’s residence even from a public location does violate s. 8 of Charter

During the Project Skylark investigation, the police developed a theory that the accused’s residence was being utilized as a stash house. An officer requested that a public view camera be installed outside of the residence of the accused, and the officer did not believe that prior judicial authorization was required for video surveillance of the accused’s residence because of his belief that the camera was a “public view camera”, it provided a very limited view of the driveway of the residence, and it did not look through the windows and was therefore not intrusive (R. v. Aubrey 2022 ONSC 635)

The camera was installed and used during the months of April 2019 through to July 2019. It substantially replaced physical surveillance of the residence and recorded the area 24 hours a day, 7 days a week. The intention of the camera was to observe the interactions, if any, between targets of the investigation and the accused, as well as the comings and goings of the accused in particular. It was positioned such that it recorded a portion of the accused’s driveway as well as the front of his residence. Ultimately, the images and observations captured from the recordings were included in the Information to Obtain (“ITO”) that granted the police authorization to enter and search the accused’s residence. In addition to the installed video camera surveillance, the police also conducted physical surveillance of the property from the street. Although much of the surveillance was, “eyeball surveillance”, some video recording was undertaken.

In R. v. Wong [1990] 3 S.C.R. 36 at para. 8, the Supreme Court of Canada found that surreptitious video surveillance by agents of the state constituted a search and seizure within the meaning of s. 8 of the Charter. The subject matter of the search in this ONSC case was information about the accused’s comings and goings. The video surveillance provided police with information about the identities of visitors to the accused’s residence, the length of their stays, and the presence of items brought into or out of the residence. The ONSC found that the accused had a privacy interest both in the area which was the subject of the surveillance, and in the information which was captured on the video images. Further, the court found that the expectation of privacy was objectively reasonable, and his reasonable expectation of privacy was breached by the actions of the police in installing video camera surveillance directed at his residence and the surrounding private property, and that the installation and use of a video camera to conduct continuous surveillance of the accused’s residence and its surrounding property was a breach of his rights pursuant to s. 8 of the Charter.

In this case, the camera monitored activity in a defined space, namely the driveway and the front of the accused’s residence. Upon reviewing the video surveillance, the judge said it was apparent that the accused was aware of potential street-level sightlines into his property and that he adopted countermeasures to limit those views. The accused and his visitors entered the house from the rear entrance as opposed to the front entrance. The accused and his visitors also often interacted in the driveway behind the lifted hood of a vehicle. While it is possible that they were plagued by engine troubles, it is more likely that he and his guests were seeking to communicate privately and out of public view, said the judge.

The ONSC said while the camera may have been installed in a public area and have provided incidental views of public areas, its lens was directed to the accused’s private residence and yard, places the public could not enter or view without an invitation from the accused. The fact that some areas of the property were visible to the public was, in the judge’s view, irrelevant. Indeed, it seemed clear to the judge that the very reason that the camera was installed was to provide views of the accused’s property, and by extension to obtain information about the activities being conducted on the property, that were not possible from the street and were not subject to public view. In the court’s ruling, Section 487.01 of the Criminal Code contemplates the very circumstances present in this case. Parliament’s clear intention was to allow the police to use video surveillance, or any other devices needed to conduct a search or seizure in respect of a person or a person’s property, only when certain preconditions have been met. The installation of a video surveillance camera directed towards the otherwise private areas of the accused’s residence and its surrounding property in the absence of prior judicial scrutiny was intrusive and failed to satisfy any objectively reasonable preconditions. In the absence of a warrant, the resulting video surveillance constituted an unreasonable search and seizure.

In debating the physical surveillance activities undertaken, the court said that the police are at liberty to conduct physical surveillance without the necessity of obtaining a warrant. This includes surveillance of an individual or surveillance of places where an individual resides or frequents. Provided that the police do not trespass on private property, they are not constrained in their ability to employ physical surveillance as an investigative technique. However, the question to be answered here, in the court’s view, was whether the police are permitted to memorialize their personal surveillance through the use of photographs and video recordings in the absence of a warrant, or whether they are limited to note-taking and personal recall?

In the present case, the purpose of the physical surveillance and the recorded images captured during that surveillance did not differ from that of the installed video cameras. It was the objective of the police to further their criminal investigation by collecting evidence to support an ITO. Their observations and recordings may also serve as circumstantial evidence of the accused’s knowledge of and control over the items subsequently found during the search of his residence. The key differences between the recordings conducted by officers during their physical surveillance and those conducted by the installed video camera were the manner in which they were obtained and the views that they provided. The video taken during the physical surveillance served as a record of the “eyeball surveillance” which was lawfully undertaken by the police. The surveillance was recorded from an area accessible to the public and provided only those views available to members of the public passing by the property or, in this case, police officers lawfully conducting physical surveillance. While the video images could be “zoomed in”, this could also have been done during lawful physical surveillance using a pair of binoculars.

Conversely, the installed video cameras provided a view of the accused’s property that was not otherwise available to the public or to police conducting lawful physical surveillance. The installed cameras effectively permitted the police to visually trespass onto the accused’s property. In the court’s view, this trespass was fatal to the use of the installed cameras in the absence of a warrant. There was also an argument that video images provide a permanent record that can be reviewed and examined after the fact, thereby making them more intrusive than mere physical surveillance. The judge said that this is where the purpose of the surveillance becomes relevant: had the police been seeking to collect self-incriminating evidence against the accused to prove the commission of a crime, a general warrant would have been advisable and likely necessary. In this case, where the primary purpose was to support an ITO, the recordings were simply another tool in the police investigative arsenal and they did not require a warrant, provided that they were the by-product of lawful physical surveillance.

The ONSC found that the accused’s reasonable expectation of privacy was not infringed by the video recordings undertaken by the police during their physical surveillance. It was objectively reasonable to expect that activities conducted in plain view would be observed by members of the public, including the police. Further, it was objectively reasonable to expect that, in this day and age, when most members of the public carry personal electronic recording devices to document the minutiae of their lives, and many members of the public have recording devices installed on their homes and in their vehicles, at least some of the accused’s activities conducted in plain view would be recorded. Given some of the counter-surveillance tactics observed on the videos, it was the judge’s view that the accused likely also had a subjective expectation of police surveillance. In the circumstances, the video images recorded secondary to physical police surveillance did not breach s. 8 of the Charter.

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